BILL ANALYSIS Ó
AB 809
Page 1
Date of Hearing: April 9, 2013
ASSEMBLY COMMITTEE ON HEALTH
Richard Pan, Chair
AB 809 (Logue) - As Amended: April 3, 2013
SUBJECT : Healing arts: telehealth.
SUMMARY : Revises the requirement on health care providers prior
to the delivery of health care via telehealth to verbally inform
and document consent of the patient for this use by replacing it
with a requirement to obtain a waiver for treatment involving
telehealth services, as specified. Specifically, this bill :
1)Deletes the requirement in existing law that prior to the
delivery of health care via telehealth, the health care
provider at the originating site verbally inform the patient
that telehealth may be used and obtain verbal consent from the
patient for this use. Deletes the requirement for the verbal
consent to be documented in the patient's medical record.
2)Replaces the requirement deleted in 1) with a requirement that
prior to delivery of health care via telehealth, the health
care provider at the originating site shall provide the
patient with a waiver for the course of treatment involving
telehealth services to obtain informed consent for the agreed
upon course of treatment. Requires the signed waiver to be
contained in the patient's medical record.
3)Provides that nothing in this bill precludes a patient from
receiving in-person health care delivery services during a
course of treatment after agreeing to receive services via
telehealth.
4)Removes the unprofessional conduct provision cross reference
from licensing laws related to various health care providers
including dentists, marriage and family therapists, licensed
educational psychologists, licensees of the Board of
Behavioral Sciences, and Social Workers.
EXISTING LAW :
1)Defines telehealth as the mode of delivering health care
services and public health via information and communication
technologies to facilitate the diagnosis, consultation,
AB 809
Page 2
treatment, education, care management, and self-management of
a patient's health care while the patient is at the
originating site and the health care provider is at a distant
site. Telehealth facilitates patient self-management and
caregiver support for patients and includes synchronous
interactions and asynchronous store and forward transfers.
2)Requires prior to the delivery of health care via telehealth,
the health care provider at the originating site to verbally
inform the patient that telehealth may be used and obtain
verbal consent from the patient for this use. Requires the
verbal consent to be documented in the patient's medical
record.
3)States that all laws regarding the confidentiality of health
care information and a patient's rights to his or her medical
information apply to telehealth interactions.
4)Exempts a patient under the jurisdiction of the Department of
Corrections and Rehabilitation or any other correctional
facility.
5)Notwithstanding any other provision of law and for purposes of
1) through 4) above, the governing body of the hospital, whose
patients are receiving the telehealth services, may grant
privileges to and verify and approve credentials for providers
of telehealth services based on its medical staff
recommendations that rely on information provided by the
distant-site hospital or telehealth entity, as described in
federal regulations. States legislative intent to authorize a
hospital to grant privileges to and verify and approve
credentials for providers of telehealth.
6)States that "telehealth" includes "telemedicine," as
specified.
7)Makes the failure of a health care provider to comply with 1)
through 6) above unprofessional conduct.
8)Provides that 1) through 7) above shall not be construed to
alter the scope of practice of any health care provider or
authorize the delivery of health care services in a setting or
in a manner not otherwise authorized by law.
AB 809
Page 3
FISCAL EFFECT : None
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, this bill
would delete a section in law amended by AB 415 (Logue),
Chapter 547, Statutes of 2011, the Telemedicine Advancement
Act of 2011. The author states that AB 415 replaced and
updated the outdated terminology of "telemedicine" with
"telehealth," to reflect the current use of telehealth in
California's healthcare system, providing a broader range of
services than contained in the outdated 1996 model statute.
Under AB 415, in order to ensure that both physicians and
patients understood that telehealth may be used to treat a
patient, a physician is required to obtain verbal consent for
each and every visit with the patient. Within a year after
implementation, physicians have reported that this constant
requirement is onerous and burdensome on their ability to
treat patients efficiently.
The author states that failure of a provider to comply with
this requirement constitutes unprofessional conduct and the
practical result is that a provider cannot provide home
telehealth services to a patient in compliance with the law
unless a licensed health care provider visits that patient's
home to obtain consent for telehealth services. The author
believes this requirement eliminates all efficiencies achieved
in rendering telehealth services to patients at their homes
and is inconsistent with the stated intent and principles of
AB 415.
2)BACKGROUND . In February 2011, the Center for Connected Health
Policy issued a report with 13 recommendations to update
California's Telemedicine Development Act (TDA). AB 415
enacted those recommendations in the Telehealth Advancement
Act of 2011. Prior to the passage of AB 415, as it relates to
consent requirements, existing law required the following:
a) Prior to the delivery of health care via telemedicine,
the health care practitioner who has ultimate authority
over the care or primary diagnosis of the patient shall
obtain verbal and written informed consent from the patient
or the patient's legal representative. The informed
consent procedure shall ensure that at least all of the
following information is given to the patient or the
patient's legal representative verbally and in writing:
AB 809
Page 4
i) The patient or the patient's legal representative
retains the option to withhold or withdraw consent at
any time without affecting the right to future care or
treatment nor risking the loss or withdrawal of any
program benefits to which the patient or the patient's
legal representative would otherwise be entitled;
ii) A description of the potential risks,
consequences, and benefits of telemedicine;
iii) All existing confidentiality protections apply;
iv) All existing laws regarding patient access to
medical information and copies of medical records apply;
v) Dissemination of any patient identifiable images
or information from the telemedicine interaction to
researchers or other entities shall not occur without
the consent of the patient;
vi) A patient or the patient's legal representative
shall sign a written statement prior to the delivery of
health care via telemedicine, indicating that the
patient or the patient's legal representative
understands the written information provided pursuant to
a), and that this information has been discussed with
the health care practitioner, or his or her designee;
vii) The written consent statement signed by the
patient or the patient's legal representative shall
become part of the patient's medical record; and,
viii) The failure of a health care practitioner to
comply with this section shall constitute unprofessional
conduct.
AB 415 proposed to eliminate all of these requirements.
However, compromise amendments adopted in the Assembly Health
Committee replaced these provisions with the verbal consent
requirement.
3)SUPPORT . The California Association of Physician Groups
supports this bill because telehealth is a critical component
of the strategy to expand access to health care across
California and this is important clean-up provisions to help
this technology to come into its own. The Association of
California Healthcare Districts states that eliminating the
need for health care workers to obtain oral consent to receive
telehealth services during every visit, allows a patient to be
comfortable with the standard, that telehealth may be used
when receiving health care services.
AB 809
Page 5
4)RELATED LEGISLATION .
a) AB 318 (Logue) authorizes Medi-Cal payments for
teledentistry services provided to individuals
participating in the Medi-Cal program.
b) AB 1174 (Bocanegra) contains similar provisions as AB
318 related to Medi-Cal payments for teledentistry and
also makes revisions to the Dental Practices Act related to
registered dental assistants and registered dental
assistants in extended functions.
c) SB 578 (Wyland) amends the unprofessional conduct
provisions relating to marriage and family therapists
unrelated to telehealth.
5)PREVIOUS LEGISLATION .
a) SB 764 (Steinberg) of 2012 would have required the
Department of Developmental Services (DDS) to pilot the use
of "telehealth systems," defined as a mode of delivering
services that utilizes information and communications
technologies to facilitate the diagnosis, evaluation and
consultation, treatment, education, care management
supports, and self-management of consumers in the provision
of Applied Behavioral Analysis and Intensive Behavioral
Intervention. SB 764 was vetoed by Governor Brown. The
Governor's veto message said, "I appreciate the author's
desire to bring more efficiency to regional centers as well
as promote the value of telehealth. The goals of this
bill, however, can already be accomplished under existing
law. Mandating every individual program planning team to
consider telehealth appears excessive. Where beneficial
and available, I expect they will consider it, without the
state telling them to do so."
b) SB 1050 (Alquist) of 2012 would have required DDS to
establish an autism telehealth taskforce to be administered
and led by a public or nonprofit entity responsible for the
activities and work of the taskforce, would have provided
that the lead administrator appoint members of the
taskforce who have knowledge or experience, as specified,
and would have provided that the taskforce provide
technical assistance and recommendations in the area of
telehealth services for individuals with autism spectrum
disorder, as specified. SB 1050 was vetoed by Governor
Brown. The Governor's veto message said, "I am returning
AB 809
Page 6
SB 1050 without my signature. Last year I signed AB 415
(Logue), the Telehealth Advancement Act of 2011, to update
our statutes on the use of telehealth. As we work to
improve and modernize our health care system, we can expect
telehealth to play an increasingly prominent role in rural
and urban areas, for many diseases and conditions. Such
advancements and collaboration are occurring now, and a
privately funded, disease-specific task force set forth in
statute does not appear to be warranted."
c) AB 1733 (Logue), Chapter 782, Statutes of 2012, updates
several code sections to replace the term "telemedicine"
with "telehealth" and expands the potential for the use of
telehealth in additional health care programs administered
by the Department of Health Care Services such as the
Program of All-Inclusive Care for the Elderly.
d) AB 415 (Logue) establishes the Telehealth Advancement
Act of 2011 to revise and update existing law to facilitate
the advancement of telehealth as a service delivery mode in
managed care and the Medi-Cal program.
e) AB 175 (Galgiani), Chapter 419, Statutes of 2010, for
the purposes of Medi-Cal reimbursement, expands, until
January 1, 2013, the definition of "teleophthalmology and
teledermatology by store and forward" to include services
of an optometrist who is trained to diagnose and treat eye
diseases.
f) AB 2120 (Galgiani), Chapter 260, Statutes of 2008,
extends the Medi-Cal telemedicine reimbursement
authorization until January 1, 2013.
g) AB 329 (Nakanishi), Chapter 386, Statutes of 2007,
authorizes the Medical Board of California (MBC) to
establish a pilot program to expand the practice of
telemedicine and to convene a working group. AB 329
specifies that the purpose of the pilot program is to
develop methods, using a telemedicine model, of delivering
health care to those with chronic diseases and delivering
other health information, and requires MBC to make
recommendations regarding its findings to the Legislature
within one calendar year of the commencement date of the
pilot program. MBC reports that this pilot program is
currently commencing.
AB 809
Page 7
h) AB 1224 (Hernández), Chapter 507, Statutes of 2007, adds
optometrists to the list of health care providers covered
under laws governing telemedicine services.
i) AB 354, (Cogdill), Chapter 449, Statutes of 2005,
expands telemedicine provisions by providing that, from
July 1, 2006 through December 31, 2008, face-to-face
contact between a health care provider and a patient is not
required for the Medi-Cal program for "store and forward"
teleophthalmology and teledermatology services.
j) SB 1665 (Thompson), Chapter 864, Statutes of 1996,
establishes TDA to set standards for the use of
telemedicine by health care practitioners and insurers.
TDA specifies, in part, that face-to-face contact between a
health care provider and a patient shall not be required
under the Medi-Cal program for services appropriately
provided through telemedicine, when those services are
otherwise covered by the Medi-Cal program, and requires a
health care practitioner to obtain verbal and written
consent prior to providing services through telemedicine.
6)DOUBLE REFERRAL . This bill is double referred, should it pass
out of this committee it will be referred to the Assembly
Committee on Business, Professions & Consumer Protection.
7)TECHNICAL AMENDMENTS .
a) The introduced version of this bill eliminated the
unprofessional conduct provision in existing law which led
to the need to also eliminate cross references in statutes
affecting specified health care providers. With the April
3rd amendments the unprofessional conduct provision has
been reinstated in Section 2290.5 thus eliminating the need
to strike the cross references in sections 1626.2, 4980.01,
4982, 4989.54, 4992.3, 4996 and 4999.90 of this bill. The
author may wish to amend this bill to address this issue.
b) It is staff's understanding that the intent of the April
3rd amendments is also to clarify that the verbal consent
requirement can be waived for subsequent telehealth uses.
As currently constructed, this provision is confusing. The
author may wish to amend this bill to clarify this
provision as suggested in ii)
i) The author is requesting an amendment to strike at
the originating site. However, with this amendment it
AB 809
Page 8
becomes unclear which provider is responsible for
obtaining the consent.
ii) Section 2290.5 (b) Prior to the delivery of health
care via telehealth, the health care provider at the
originating site shall verbally inform the patient about
the use of telehealth and request the patient's verbal
consent for this and subsequent uses of telehealth.
Prior to the delivery of health care via telehealth, the
health care provider at the originating site shall
provide the patient with a waiver for the course of
treatment involving telehealth services to obtain
informed consent for the agreed upon course of treatment.
The verbal consent shall be documented in the patient's
medical record.
REGISTERED SUPPORT / OPPOSITION :
Support
Association of California Healthcare Districts
California Association of Physician Groups
Opposition
None on file.
Analysis Prepared by : Teri Boughton / HEALTH / (916) 319-2097