BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 299
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          Date of Hearing:  April 30, 2013

                            ASSEMBLY COMMITTEE ON HEALTH
                                 Richard Pan, Chair
                    AB 299 (Holden) - As Amended:  April 16, 2013
           
          SUBJECT  :  Pharmacy.

           SUMMARY  :  Prohibits a nonresident pharmacy or a pharmacy located  
          in this state that delivers prescriptions via mail, from  
          entering into, or being a party to, an agreement with a health  
          care service plan or disability insurer that requires a plan  
          enrollee or insured to utilize mail order services or that  
          requires a plan enrollee or insured to opt out of a mail order  
          process.
           
           EXISTING LAW  :

          1)Establishes the California State Board of Pharmacy to regulate  
            pharmacists.

          2)Requires health care service plans to be regulated by the  
            Department of Managed Health Care and health insurers to be  
            regulated by the California Department of Insurance.

          3)Requires health care plans and health insurers that cover  
            prescription drug benefits to provide notice in the evidence  
            of coverage and disclosure form to enrollees/insureds  
            regarding whether the plan uses a formulary. 

           FISCAL EFFECT  :  This bill has not yet been analyzed by a fiscal  
          committee.

           COMMENTS  :

           1)PURPOSE OF THIS BILL  .  The California Pharmacists Association  
            is the sponsor of this bill.  According to the author, all  
            patients are different and what works for one patient may not  
            work for another.  Many patients prefer to receive their  
            prescription drugs from their local pharmacy and others prefer  
            mail order.  The Patient Protection and Affordable Care Act  
            has stated that prescription drug benefits are an essential  
            part of all health plans.  This essential health benefit  
            should be safeguarded from policies that force patients to  
            abandon relationships with community pharmacists.  The role of  








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            a pharmacist is vital to patient care, especially patients who  
            use maintenance medication.  This bill will ensure that access  
            to medication and medication adherence is not deterred by  
            policies that claim to save the health plan money.  In  
            actuality, there is evidence that mail order pharmacy policies  
            do not always save health plans money.  This bill protects  
            patient choice by putting an end to prescription drug benefits  
            that require patients to use a mail order pharmacy for drugs  
            and that require patients to "opt out" of a requirement to use  
            mail order pharmacies.  


           2)BACKGROUND  .  

              a)   Anthem's Mail Order Pharmacy  .  According to articles  
               published in The Los Angeles Times, Anthem Blue Cross  
               (Anthem) required some policyholders to buy their  
               prescription drugs from a single mail-order pharmacy.   
               Anthem notified members with conditions such as HIV/AIDs  
               and cancer that they will be required to buy their  
               medications from the mail-order pharmacy CuraScript or pay  
               full price at a retail drugstore.  Other Anthem members,  
               including those with chronic conditions such as diabetes,  
               faced no such requirement.  The article points out that  
               Anthem was imposing the new requirement for specialty  
               medications used to treat major illnesses to help keep  
               costs down for patients and businesses.  Subsequently, a  
               class action lawsuit was filed by the Consumer Watchdog on  
               behalf of residents who have been prescribed  
               HIV/AIDS-related maintenance medication drugs, alleging,  
               among other causes of action, discriminatory business  
               practice targeting consumers who suffer from HIV/AIDS.  In  
               February 2013, Anthem again notified policyholders who use  
               specialty medications explaining they are reversing their  
               policy and members are not required to buy their drugs from  
               CuraScript.

              b)   Pharmacist Dispensing of 90-Day Supply of Drugs  .  SB  
               1301 (Ed Hernández), Chapter 455, Statutes of 2012,  
               authorizes a pharmacist to dispense no more than a 90-day  
               supply of a dangerous drug other than a controlled  
               substance pursuant to a valid prescription that specifies  
               an initial quantity of less than a 90-day supply followed  
               by periodic refills of that amount if the following  
               requirements are satisfied:








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               i)     The patient has completed an initial 30-day supply  
                 of the dangerous drug;
               ii)    The total quantity of dosage units dispensed does  
                 not exceed the total quantity of dosage units authorized  
                 by the prescriber on the prescription, including refills;
               iii)   The prescriber has not specified on the prescription  
                 that dispensing the prescription in an initial amount  
                 followed by periodic refills is medically necessary; and,
               iv)    The pharmacist is exercising his or her professional  
                 judgment.

              c)   Pharmacy Benefit Managers (PBMs)  .  According to the  
               Federal Trade Commission, many health plan sponsors offer  
               their members prescription drug insurance and hire PBMs to  
               manage these pharmacy benefits on their behalf.  As part of  
               the management of these benefits, PBMs assemble networks of  
               retail and mail-order pharmacies so that the plan sponsors'  
               members can fill prescriptions easily and in multiple  
               locations.  PBMs contract with employers, labor unions,  
               insurance companies, the state, Medicaid (Medi-Cal in  
               California) and Medicare managed care plans, and managed  
               care companies (collectively, "plan sponsors") to manage  
               pharmacy benefits.  There are large PBMs (Express  
               Scripts/Medco, and Caremark), small and insurer-owned PBMs  
               (Aetna, Cigna Corporation, Wellpoint Health Networks),  
               retailer-owned (Eckerd Health Systems, PharmaCare  
               Management Services [a subsidiary of CVS Corp]), Walgreens  
               Health Initiative or stand-alone retail pharmacies (CVS  
               Corp, Rite Aid Corporation, Walgreen and Wal-Mart Stores,  
               Inc).

              d)   Medication Adherence  .  A study provided by the author to  
               the Committee entitled "Adherence to Medication Under  
               Mandatory and Voluntary Mail Benefit Designs," concluded  
               that mandatory mail-order policy appears to cause some  
               members to discontinue therapy prematurely, particularly  
               those without previous mail service pharmacy experience.   
               In reaching this conclusion, the study sampled employer  
               sponsored pharmacy insurance plans that offered either  
               mandatory or voluntary mail pharmacy benefits managed by  
               CVS Caremark between July 1, 2008 and March 31, 2010.  The  
               final study cohort included 27,828 (13,914 mandatory and  
               13,914 voluntary) participants.  The results are as  
               follows: persistence rates were similar through the first  








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               60 days of therapy.  The mandatory mail cohort had a  
               notable drop in persistence by day 90, with a more  
               pronounced drop among those without previous mail-service  
               pharmacy use.  Median medication possession ratio (the  
               percentage of time a patient has access to medication) and  
               optimal adherence were also lower.  Mandatory mail  
               participants were less likely to achieve optimal adherence  
               overall.  Participants with no prior use of mail-service  
               pharmacy had significantly lower odds of achieving optimal  
               adherence in all therapeutic classes.

              e)   Community Pharmacy and Mail Order  .  To investigate the  
               use trends and payment patterns for prescription drugs  
               between mail-order and community pharmacy channels of  
               distribution, a study published in the Journal of Managed  
               Care Pharmacy (2007) entitled, "Community Pharmacy and Mail  
               Order Cost Utilization for 90-Day Maintenance Medication,"  
               looked at the difference between mail-order and community  
               pharmacies in: i) payment (cost) per day for the plan  
               sponsor and for the member; ii) generic dispensing ratios  
               for all drugs; and, iii) cost per unit for the top 20  
               generic drugs dispensed through the mail-order channel.   
               The study analyzed paid pharmacy claims from two  
               state-financed pharmacy programs in Texas for fiscal year  
               2004 to investigate differences in drug use and expenditure  
               patterns between mail-order and community pharmacy channels  
               of drug distribution.  When comparing the cost per day for  
               the top therapeutic categories, the authors found the  plan  
               sponsor cost  was higher for mail-order than the community  
               pharmacy channel for approximately half of the top  
               therapeutic categories.  The  member cost  was lower for  
               mail-order than for community pharmacy for almost every  
               therapeutic category.  For all claims, the generic  
               dispensing ratios were lower in the mail-order channel than  
               in the community pharmacy channel.  The cost per unit for  
               the top 20 generic drug products dispensed by mail order  
               was 16.5% lower than community pharmacy for the plan  
               sponsor in Plan A, but 18% higher in Plan B; member costs  
               was 29.9% lower in Plan A for mail order and 34% lower in  
               Plan B.  Comparing plan and member costs combined, nine of  
               20 of the generic prices were higher through mail order in  
               Plan A, and 10 of 20 were higher through mail order in Plan  
               B.  The study concluded that overall, savings from lower  
               unit pricing through the mail-order channel benefitted the  
               member and did not translate into significant cost  








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               reductions for the plan sponsor.

              f)   Drug Utilization  .  A study entitled, "Drug Utilization  
               and Cost in a Medicaid Population: A Simulation Study of  
               Community vs. Mail Order Pharmacy," looked at the potential  
               effects on utilization and costs of the possible extension  
               of mail order services in Medicaid.  Pharmacy claims data  
               from the Ohio Medicaid Program from January 2000-September  
               2004, including 93 million claims were used for the  
               analysis.  The results of the study are as follows: the  
               baseline model revealed that the use of mail order vs.  
               community pharmacy would result in a 5.5% increase in drug  
               utilization and a 5.4% cost reduction required in  
               mail-order to become cost neutral.  Results from Ohio  
               Medicaid drugs for chronic use revealed a 5.1% in  
               utilization and a 4.8% cost reduction required to become  
               cost neutral in comparison with community pharmacy.  The  
               study concluded that mail-order pharmacy increases drug  
               utilization and can also increase drug product cost if the  
               cost per unit is not reduced accordingly.  The study  
               pointed out that prior consideration should be given to the  
               patient population, day-supply, disease, therapy, and  
               insurance characteristics to ensure the appropriate use of  
               mail order pharmacy services. 

              g)   Medicare Requirements  .  Medicare Part D, also called the  
               Medicare prescription drug benefit, is a federal program to  
               subsidize the costs of prescription drugs for Medicare  
               beneficiaries.  It was enacted as part of the Medicare  
               Modernization Act of 2003 and went into effect on January  
               1, 2006.  Regulations implementing Medicare Part D require  
               that Part D sponsors must have an accessible network of  
               retail pharmacies (specifically, within two miles in urban  
               areas, within five miles in suburban areas, and 15 miles in  
               rural areas).  The contracted pharmacy network  may  be  
               supplemented by non-retail pharmacies, including pharmacies  
               offering home delivery via mail-order and institutional  
               pharmacies, provided certain requirements are met.
             The regulations include "level playing field between  
               mail-order and network pharmacies" provisions which require  
               a sponsor to permit its plan enrollees to receive benefits,  
               which may include a 90-day supply of covered Part D drugs,  
               at any of its network pharmacies that are retail  
               pharmacies.  A sponsor may require an enrollee obtaining a  
               covered drug at a network pharmacy that is a retail  








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               pharmacy to pay any higher cost-sharing applicable to that  
               covered Part D drug at the network pharmacy that is a  
               retail pharmacy instead of the cost-sharing applicable to  
               that covered Part D drug at the network pharmacy that is a  
               mail-order pharmacy.

           3)SUPPORT  .  The California Pharmacists Association points out  
            that allowing patients to select the method of receiving their  
            prescription medications that best suit their needs improves  
            adherence to prescribed therapies.  Mandatory mail order  
            policies often discriminate against HIV/AIDS patients, elderly  
            enrollees, women, cancer patients and the seriously ill.   

          The AIDS Healthcare Foundation (Foundation) understands the need  
            for cost-savings and is consistently looking for appropriate  
            ways to manage limited health care dollars but this should not  
            jeopardize the health of patients with a chronic  
            life-threatening condition like HIV/AIDS.  The Foundation  
            included several reasons on why mail order is not an  
            acceptable alternative to patients with chronic conditions,  
            including interference with patient care because a shipment  
            does not arrive on time or the wrong drug or dosage is sent.

          The National Association of Chain Drug Stores indicates that  
            some patients need or prefer access to a face-to-face  
            consultation with their local community pharmacist whom they  
            know and trust.  This bill ensures that patients continue to  
            have that choice and are not required to utilize a mail order  
            pharmacy without first opting into that relationship.  

          The California Commission on Aging states that obtaining  
            medication through the mail can be complicated and confusing  
            for anyone, but with impaired hearing or vision, the elderly  
            can face greater risk of dangerous medication errors.  The  
            City of West Hollywood indicates that many seniors do not have  
            access to the Internet and would not be able to participate in  
            any online ordering of their medications.  Seniors also depend  
            on the advice and consultation of their pharmacists to help  
            them administer their medications according to both the  
            doctor's order and the manufacturer's protocol.      

           4)OPPOSITION  .  The California Association of Health Plans  
            indicates that this bill removes an essential tool in holding  
            down the escalating cost of medicine which in turn means  
            higher premiums and other expenses for plan enrollees.  Mail  








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            order pharmacy programs are often requested by employers  
            because they save money.  Mail order also offers many  
            conveniences for consumers including lower costs, longer  
            supply and saved time.  
          Express Scripts points out that its clients, the plan sponsors,  
            design their own pharmacy benefit to meet their needs.  The  
            details as to how that benefit is structured, including the  
            pharmacy network, mail service options, and copayment  
            structure are governed by the plan sponsor.  This bill  
            eliminates an important cost control tool for our plan  
            sponsors and creates access issues for drugs available only  
            through specialty pharmacies which primarily dispense via home  
            delivery.

          Anthem Blue Cross states that this bill unnecessarily restricts  
            the freedom of health plans to determine the most effective  
            way of controlling rising prescription drug costs.  This bill  
            will result in higher co-pays for enrollees.
             
           5)PREVIOUS LEGISLATION  .  SB 1301 (Ed Hernández), Chapter 455,  
            Statutes of 2012, authorizes a pharmacist to dispense not more  
            than a 90-day supply of a dangerous drug other than a  
            controlled substance pursuant to a valid prescription, except  
            for psychotropic medication or drugs or controlled substances,  
            as specified.  SB 1195 (Price), Chapter 706, Statutes of 2012,  
            requires a contract that is issued, amended, or renewed on or  
            after January 1, 2013, between a pharmacy and a carrier or a  
            PBM to provide pharmacy services to beneficiaries of a health  
            benefit plan to comply with standards and audit requirements.

           6)DOUBLE REFERRAL  .  This bill is double referred, it was heard  
            on April 23, 2013, in the Business, Professions and Consumer  
            Protection Committee and passed out on 8-3 vote.

           7)AUTHOR'S AMENDMENTS  .  The author would like to delete the  
            provisions of this bill and instead add the following  
            provisions in the Health and Safety and Insurance Codes:

             a)   Every health care service plan/health insurer that  
               provides prescription drug benefits shall permit plan  
               enrollees/insureds to receive prescription drug benefits,  
               which may include a 90-day supply of covered drugs, at any  
               in-network community pharmacy.  This section shall not  
               apply to specific drugs that are not available in community  
               pharmacies in a sufficient amount to meet network adequacy  








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               requirements. 

             b)   Every health care service plan/health insurer that  
               provides prescription drug benefits shall, prior to  
               enrollment in a mail order pharmacy program, permit its  
               enrollees/insured to opt in to obtain covered prescription  
               drugs through mail order.   
             
             c)   A pharmacist that dispenses a 90-day supply of covered  
               drugs must comply with Section 4064.5 of the Business and  
               Professions Code.

           REGISTERED SUPPORT / OPPOSITION  :  

           Support 
           California Pharmacists Association (sponsor)
          AARP
          Access NOW
          AIDS Healthcare Foundation
          AIDS Services Foundation Orange County
          BIOCOM
          Black Women for Wellness
          California Chronic Care Coalition
          California Commission on Aging
          California Healthcare Institute
          California National Organization for Women
          California Senior Legislature
          City of West Hollywood
          Common Ground
          Disability Rights California
          L.A. Gay & Lesbian Center
          National Association of Chain Drug Stores
          National Community Pharmacists Association
          National Multiple Sclerosis Society
          NCLR/CSULB Center for Latino Community Health
          Orange County HIV/AIDS Advocacy Team
          Pharmacy Choice
          Project  Inform
          Rite Aid
          Target
          Walgreens

           Opposition 
           America's Health Insurance Plans
          Anthem








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          Association of California Life & Health Insurance Companies
          California Association of Health Plans
          CVS Caremark
          Express Scripts
          Health Net
          Molina Healthcare of California

           
          Analysis Prepared by  :    Rosielyn Pulmano / HEALTH / (916)  
          319-2097