BILL ANALYSIS �
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|Hearing Date:June 10, 2013 |Bill No: AB |
| |809 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Ted W. Lieu, Chair
Bill No: AB 809Author:Logue
As Amended: April 29, 2013 Fiscal:No
SUBJECT: Healing arts: telehealth.
SUMMARY: This bill is an urgency measure which repeals the segment of
the Telehealth Advancement Act of 2011 requiring a physician to obtain
oral consent prior to each delivery of telehealth services.
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, 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.
(Business and Professions Code (BPC) � 2290.5 (a)(6))
2) Defines "asynchronous store and forward" as the transmission of a
patient's medical information from an originating site to the
health care provider at a distant site without the presence of the
patient. (BPC � 2290.5 (a)(1))
3) Defines "synchronous interaction" as a real-time interaction
between a patient and a health care provider located at a distant
site. (BPC � 2290.5 (a)(5))
4) Defines "distant site" as a site where a health care provider who
provides health care services is located while providing these
services via a telecommunications system.
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(BPC � 2290.5 (a)(2))
5) Defines "originating site" as a site where a patient is located at
the time health care services are provided via telecommunications
system or where the asynchronous store and forward service
originates. (BPC � 2290.5 (a)(4))
6) Requires a health care provider to verbally inform the patient that
telehealth may be used, obtain verbal consent from the patient for
this use and requires the verbal consent to be documented in the
patient's medical record. (BPC � 2290.5 (b))
7) Establishes that failure to inform the patient that telehealth may
be used and to obtain their informed consent constitutes
unprofessional conduct. (BPC � 2290.5 (c))
8) 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. (BPC � 2209.5 (e))
This bill:
1) Specifies that the health care provider initiating the use of
telehealth at the originating site shall verbally inform the
patient about the use of telehealth and request the patient's
verbal consent, which may apply in that instance and for any
subsequent use of telehealth.
2) Specifies that verbal consent shall be documented in the patient's
medical record.
3) Contains an urgency clause allowing the bill to take effect
immediately upon enactment in order to protect the health and
safety of the public due to a lack of access to health care
providers in rural and urban medically underserved areas of
California, the increasing strain on existing providers expected to
occur with the implementation of the federal Patient Protection and
Affordable Care Act and the assistance that further implementation
of telehealth can provide to help relieve these burdens.
FISCAL EFFECT: This bill has been keyed "non-fiscal" by Legislative
Counsel.
COMMENTS:
1. Purpose. The Author is the sponsor of the bill. According to the
Author, "Under AB 415, in order to ensure that both physicians and
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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. One year after implementation, physicians
have reported that this constant requirement is onerous and
burdensome on their ability to treat patients efficiently."
2. Background. Telehealth . Telehealth is the practice of health care
by using information and communication technologies such as audio,
video or data communications to facilitate in diagnosis,
consultation, treatment, education or management of a patient's
health care. These types of communications include real time face
to face interactions with the patient (synchronous) or near real
time where the patient is not present (asynchronous) two-way
transfer of medical information. Telehealth helps reduce barriers
by connecting patients and providers over great distances (e.g.,
those in remote parts of the state, those with disabilities or
those with dialects not commonly found in their area).
Telemedicine Development Act of 1996 (SB 1665) . California was one
of the first states to utilize telemedicine (now referred to as
"telehealth") beginning in the 1990s. The purpose of the
Telemedicine Development Act of 1996 (TDA of 1996) was to reach
underserved populations who, due to geographic and/or economic
barriers, could not access health care.
Insurance Reimbursement . Included in the TDA of 1996
was the requirement that health insurers establish
reimbursement policies for telemedicine providers. It
required every insurer issuing group or individual policies of
disability insurance to reimburse claims for those expenses
within 30 working days after the receipt of claim unless
contested; prohibited health care service disability insurers,
non-profit plans and the Medi-Cal program, from requiring
face-to-face contact between patient and physician as a
condition of payment for services and required service plans
to adopt reimbursement policies to compensate telemedicine
services. In 2000, AB 2877 was passed which indefinitely
extended the provisions for telemedicine coverage by Medi-Cal.
Patient Protections . In 1997, the TDA of 1996 was
amended to exclude from the definition of telemedicine
telephone conversations and electronic mail messages between a
health care practitioner and a patient. The law also extended
the rights granted to a patient of telemedicine to the
patient's legal representative and it revised protections
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granted to patients of telemedicine to require application of
existing laws regarding patient access to medical information
and copies of medical records and surrogate decision-making.
Executive Orders Related to Telemedicine. In 2006 and 2007, a
number of Executive Orders that would provide funding for
telemedicine went into effect.
Executive Order S-12-06 allocated $240 million to
achieve full information exchange between health care
providers and stakeholders within ten years.
Executive Order S-23-06 established a broadband task
force to promote broadband internet access and usage.
Executive Order S-06-07 advanced the adoption of health
information technology, increased transparency of quality and
pricing information and promoted quality and efficiency of
health care services.
Teleheath Advancement Act of 2011 (AB 415) . In 2011, the TDA of
1996 was updated. The law replaced the term "telemedicine" with
"telehealth." It allowed for the provision of a broader range of
telehealth services, expansion of teleheatlh providers to include
all licensed healthcare professionals, expansion of telehealth care
settings and the ability for California hospitals to establish
medical credentials for telehealth providers more easily.
1. Arguments in Support. The Medical Board of California supports the
bill. They believe that the bill will allow the Telemedicine
Advancement Act of 2011 to be better implemented, which will help
to improve access to care via telehealth and further the Board's
mission of improving access to care.
The Association of California Healthcare Districts also supports
the bill. They write in their letter, "The majority of
California's healthcare districts are located in rural areas, and
many utilize telehealth services to provide healthcare to the
community?Telehealth has the potential to reduce costs, increase
access and improve quality of care in a patient's life. In the
most rural healthcare districts, the ability to bring patients
together with specialized physicians through telehealth removes the
obstacle of remoteness in patient care. In areas of the state lack
specialty physicians, telehealth provides patients the opportunity
to get specialized care, as needed."
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The California Academy of Physician Assistants supports the bill.
In their letter they state, "Telehealth services have proven to be
an important and efficient tool in the delivery of healthcare
services. Removing barriers to use this critical technology allows
patients and healthcare providers greater choice and a broader
range of healthcare services."
The California Association of Physician Groups (CAPG) indicates
their support in their letter when they write, "Telehealth is a
critical component of the strategy to expand access to healthcare
across California. CAPG member groups are busy implementing
telehealth into their daily practice on an increasingly more
frequent level. Many hurdles remain and it will take some years
for this technology to come into its own. AB 809 provides
important clean-up provisions to help this process move along."
2. Current Related Legislation. AB 318 (Logue, 2013) authorizes
Medi-Cal payments for teledentistry services provided to
individuals participating in the Medi-Cal program.
( Status : AB 318 is currently pending in Assembly Health Committee.)
AB 1174 (Bocanegra, 2013) expands the scope of practice for
registered dental assistants, registered dental assistants in
extended functions, and registered dental hygienists to better
enable the practice of teledentistry in accordance with the
findings of a Health Workforce Pilot Program, and enables
reimbursement by Medi-Cal for Virtual Dental Home treatment.
( Status : AB 1174 is currently pending in Assembly Health
Committee.)
3. Prior Related Legislation. SB 764 (Steinberg, 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. ( Status : SB 764 was vetoed by
Governor Brown. The Governor's veto message noted that the goal of
the bill could already be accomplished under existing law and
mandating every individual program planning team to consider
telehealth appeared to be excessive.)
SB 1050 (Alquist, 2012) would have required DDS to establish an
autism telehealth taskforce to be administered and led by a public
or nonprofit entity, would have provided that the lead
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administrator appoint members to the taskforce and would have
provided that the taskforce provide technical assistance and
recommendations in the area of telehealth services for individuals
with autism spectrum disorder. ( Status : SB 1050 was vetoed by
Governor Brown. The Governor's veto message indicated that he
signed the Telehealth Advancement Act of 2011 in the prior year in
order to update statutes on the use of telehealth. He noted that
advancements and collaboration were occurring at the time of the
bill and a privately funded, disease-specific task force set forth
in statute did not appear to be warranted.)
AB 1733 (Logue, Chapter 782, Statutes of 2012) updated several code
sections to replace the term "telemedicine" with "telehealth" and
expanded the potential for telehealth use in health care programs
administered by the Department of Health Care Services.
AB 415 (Logue, Chapter 547, Statutes of 2011) established the
Telehealth Advancement Act of 2011 which revised and updated laws
to facilitate the advancement of telehealth in managed care and the
Medi-Cal program.
AB 175 (Galgiani, Chapter 419, Statutes of 2010) expanded 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 until January 1, 2013.
AB 2120 (Galgiani, Chapter 260, Statutes of 2008) extended the
Medi-Cal telemedicine reimbursement authorization until January 1,
2013.
AB 329 (Nakanishi, Chapter 386, Statutes of 2007) authorized the
Medical Board of California (MBC) to establish a pilot program to
expand the practice of telemedicine, and authorized the MBC to
implement the program by convening a working group. The bill
specified that the purpose of the pilot program was to develop
methods, using a telemedicine model, of delivering health care to
those with chronic diseases and delivering other health
information. It also required the MBC to make recommendations to
the Legislature within one year of the commencement date of the
program.
AB 1224 (Hernandez, Chapter 507, Statutes of 2007) defined the
practice of optometry as including the treatment of primary
open-angle glaucoma with the participation of a collaborating
ophthalmologist. It made a licensed optometrist subject to
"interactive" telemedicine provisions and defined "collaborating
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ophthalmologist" for purposes of his or her participation in
treating primary open angle glaucoma.
AB 234 (Eng, Chapter 586, Statutes of 2007) imposed a 125 hour
limitation on experience for the marriage and family therapist
licensure examination earned providing personal psychotherapy
services via telemedicine and modified the definition of
professional enrichment activities for these purposes.
AB 354 (Cogdill, Chapter 449, Statutes of 2005) until January 1,
2009, authorized under the Medi-Cal program, to the extent that
federal financial participation was available, "teleophthalmology
and teledermatology by store and forward."
AB 116 (Nakano, Chapter 20, Statutes of 2003) included that the
provisions of law regulating telemedicine applied to the practice
of a dentist, podiatrist, psychologist, marriage and family
therapist and a clinical social worker.
AB 442 (Assembly Committee on Budget, Chapter 1151, Statutes of
2002) required the State Department of Health Services to allow
psychiatrists to receive fee-for-service Medi-Cal reimbursement for
services provided through telemedicine until June 30, 2004, or
until a method for reimbursement was developed.
AB 2780 (Gallegos, Chapter 310, Statutes of 1998) established
minimum standards for audio and visual telemedicine systems and
would require the Department of Health Services to report to the
appropriate committees of the Legislature by January 1, 2000, on
the application of telemedicine to provide various types of care.
Also defined ''interactive'' to mean an audio, video, or data
communication involving a real time (synchronous) or near real time
(asynchronous) two-way transfer of medical data and information.
SB 1665 (Thompson, Chapter 864, Statutes of 1996) established
California's Telemedicine Development Act (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.
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SUPPORT AND OPPOSITION:
Support:
Medical Board of California
Association of California Healthcare Districts
California Academy of Physician Assistants
California Association of Physician Groups
Opposition:
None on file as of June 4, 2013.
Consultant: Le Ondra Clark, Ph.D.