BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 339


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          Date of Hearing:  May 27, 2015


                        ASSEMBLY COMMITTEE ON APPROPRIATIONS


                                 Jimmy Gomez, Chair


          AB  
          339 (Gordon) - As Amended May 20, 2015


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          Urgency:  No  State Mandated Local Program:  YesReimbursable:   
          No


          SUMMARY:


          This bill restricts cost-sharing, and specifies coverage  
          requirements for health plans and insurers that cover  
          prescription drugs, while exempting Medi-Cal managed care.   








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          Specifically, this bill:


          1)Applies to covered outpatients prescription drugs by the  
            contract that constitute essential health benefits.  


          2)Restricts cost-sharing amounts to cost sharing to  
            one-twenty-fourth of the annual out-of-pocket limit applicable  
            to individual coverage (currently $6,600), for a supply of up  
            to 30 days.


          3)Requires coverage for specified drugs under a variety of  
            specified circumstances.


          4)Standardizes tiers for prescription drug formularies. 


          5)Restricts the ability of health plans and insurers to  
            institute cost-sharing and place drugs on certain cost-sharing  
            tiers, unless specified conditions are met, such as  
            demonstration that placement of drugs on certain tiers or  
            cost-sharing levels do not discourage the enrollment of  
            individuals with health conditions or reduce medication  
            adherence.   Restricts the ability of plans to place drugs on  
            formulary tiers based solely on cost. 


          FISCAL EFFECT:


          1)One-time costs to DMHC to issue regulations and review plan  
            compliance of $3.7 million over three fiscal years, and  
            $450,000 ongoing to ensure compliance (Managed Care Fund).   
          2)One-time costs to CDI to issue regulations and review  
            insurance policy compliance in the low hundreds of thousands,  
            and $80,000 ongoing (Insurance Fund). 








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          3)Since the California Health Benefits Review Program analyzed  
            this bill, it has been amended to restrict its application to  
            prescription drugs that constitute essential health benefits.   
            Therefore, the numbers cited here represent an upper bound on  
            potential costs associated with the provision to cap  
            cost-sharing amounts.  


             a)   No impact on state-funded health care programs,  
               including CalPERS and Medi-Cal. The elimination of costs to  
               CalPERS is due to May 20, 2015 amendments that restricted  
               the applicability of the bill to drugs that are essential  
               health benefits.  The costs for CalPERS reported in CHBRP's  
               analysis were due to the applicability of the bill to  
               infertility drugs covered by CalPERS, which are not  
               essential health benefits.  


             b)   Increased employer-funded premium costs in the private  
               insurance market of $162 million.


             c)   Increased premium expenditures by employees and  
               individuals purchasing insurance of $216 million, offset by  
               reductions in out-of-pocket costs of $65 million for the  
               approximately 46,000 Californians with high-cost drugs,  
               working out to a savings of around $1,400 per individual  
               affected.


          1)Unknown, potentially significant fiscal impact on the private  
            health insurance market for other provisions not  
            quantitatively analyzed by CHBRP.  CHBRP notes:


               a)     By requiring coverage of single-tablet regimens and  
                 extended release prescription drugs, carriers lose  








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                 negotiating power, leading to unknown higher drug costs.  
                 The bill requires the drugs to be covered but does not  
                 explicitly restrict the use of prior authorization and  
                 other utilization review techniques, so if plans are able  
                 to still direct individuals to lower-cost options, the  
                 impact may not be that large.  


               b)     Some provisions have an unclear impact and the  
                 effect would depend on interpretation and how plans  
                 adjust their formularies to comply with new rules. 


          2)One provision of this bill requires health plans to  
            demonstrate that proposed cost-sharing for a medically  
            necessary drug will not discourage medication adherence. CHBRP  
            did not comment on the impact of this provision.  However,  
            CHBRP reports,  "there is a preponderance of evidence across  
            multiple health conditions that, as cost sharing increases,  
            adherence to drug regimens decreases?.[One study] found that  
            for every 10% increase in cost sharing, there was a 2% to 6%  
            decrease in utilization. The results are clear for those with  
            chronic conditions that increased cost sharing is associated  
            with decreased adherence." Given these findings, plans and  
            insurers would likely find it difficult to demonstrate that  
            they could impose any level of cost-sharing without  
            discouraging medication adherence, e.g., even a $5 or $20  
            copayment could have some impact on adherence as compared to a  
            zero share of cost.  It appears as though it could be  
            interpreted to prohibit any cost-sharing unless it could be  
            proven there is no impact of the proposed cost-sharing on  
            adherence.  If interpreted this way, this provision poses  
            significant fiscal risk, as it would call into question the  
            ability to impose any cost-sharing in most cases.
          


          COMMENTS:









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          1)Purpose. According to the author, the goal of this bill is to  
            implement and improve upon concepts from federal guidance and  
            Covered California in order to ensure Californians are better  
            able to afford their prescription drugs and that formularies  
            are not designed in a discriminatory way that discourages  
            enrollment of individuals with specific health care  
            conditions.  



          2)Patient cost-sharing. Payment for covered health benefits is  
            shared between the payer (e.g., health plan/insurer or  
            employer) and the enrollee.  The patient cost-share is the  
            portion that must be paid out-of-pocket directly to the  
            provider, generally at the time of treatment.  Common  
            cost-sharing mechanisms include copayments (a fixed dollar  
            amount), coinsurance (a percentage of actual cost), and/or  
            deductibles (an amount, generally $500 or more, which the  
            patient must pay for health care before the plan pays  
            anything, subject to certain exclusions).  Health plans and  
            insurers use cost-sharing to direct patients toward high-value  
            services. 



          3)Drug Benefits Management.  Pursuant to the federal Patient  
            Protection and Affordable Care Act and state law, health plans  
            in the individual and small-group market are required to cover  
            EHBs, which include prescription drugs.  Plans generally use a  
            formulary, which includes "tiers" into which drug classes and  
            specific medications are assigned based on safety, efficacy,  
            and cost.  Lower-tier drugs are generally cheaper for the  
            patient and for the plan, which helps keep costs down by  
            discouraging the use of higher-cost options. Higher tiers can  
            have significant cost-sharing, and may include drugs that are  








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            more costly and/or are subject to more concerns about  
            appropriate prescribing, safety, or efficacy.



          4)"Specialty drugs" is a term of art used in the industry, which  
            used to simply connote drugs that needed special handling or  
            administration, but has come to also include drugs with  
            extremely high costs as well. Very high-cost Hepatitis C drugs  
            are often considered specialty drugs and placed on higher  
            tiers due to cost.  Conditions targeted by specialty drugs  
            tend to be chronic and progressive in nature and can impact  
            quality of life, along with morbidity and mortality.  Examples  
            include growth hormone disorders, rheumatoid arthritis,  
            asthma, multiple sclerosis, hepatitis C, hemophilia, cancer,  
            HIV/AIDS, and lupus.  This bill restricts the ability of plans  
            and insurers to place drugs on specific tiers that subject  
            them to higher cost-sharing based solely on the cost of the  
            drug, in absence of clinical reasons. 
          5)Recent state and federal action has been taken on the issue of  
            formulary design and cost-sharing.  On May 21, 2015, the  
            Covered California board adopted guidelines for formulary  
            design in health plans sold through the Exchange. The  
            guidelines standardize formulary tiers, limit placement of  
            certain types of drugs on certain tiers, and implement drug  
            cost-sharing caps of $250 for most plans and $500 for  
            lower-priced bronze plans.  A proposed federal rule released  
            on November 26, 2014, and the final rule, released on February  
            27, 2015, cautioned health plans and insurers that certain  
            examples cited appear discriminatory in their application when  
            looking at the totality of the circumstances, and may be  
            prohibited.  Examples included placing most or all drugs that  
            treat a specific condition on the highest cost tiers, or  
            refusal to cover a single-tablet drug regimen or  
            extended-release product, absent an appropriate reason for  
            such refusal.  Potential discrimination in plan design is of  
            heightened interest now.  Since health insurers can no longer  
            deny coverage for a preexisting condition, discouraging less  
            healthy individuals by strategically charging high  








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            cost-sharing is seen as a way insurers can avoid enrolling  
            individuals with higher health care needs.  


          6)Alignment with Existing Policy: Same Same but Different. Many  
            of the bill's provisions are similar in concept to state  
            regulations, state policies, and federal law, but are  
            different enough to require significant analysis,  
            interpretation, and further guidance by regulators. In  
            addition, many provisions impose stringent requirements on the  
            ability of plans to manage formularies that appear to require  
            significant administrative effort to demonstrate compliance.   
            Current guidance includes similar concepts to those in the  
            bill, but this bill requires proactive demonstration that  
            certain conditions are met, as opposed to more permissive  
            language in the guidance.  For example, federal guidance  
            states, "Issuers are expected to impose limitations and  
            exclusions based on clinical guidelines and medical evidence."  
             This bill imposes a requirement that "A health care service  
            plan shall demonstrate to the director that any limitation or  
            utilization management is consistent with and based on  
            clinical guidelines and peer-reviewed scientific and medical  
            literature."  


          7)Support. Health Access, the sponsor of this bill, states it  
            would protect Californians with chronic conditions by  
            implementing concepts from federal guidance and state policy,  
            and improving upon them.    


          8)Opposition. Health plans and insurers, and pharmaceutical  
            benefit managers (PBM's), oppose this bill.  California  
            Association of Health Plans states that this bill does nothing  
            to control the high underlying cost of pharmaceuticals, nor  
            does it do anything to encourage the makers of drugs to be  
            more efficient and lower costs.  Other opponents state  
            restrictions on formulary design are burdensome and  
            unnecessary, and will not be consistent with Covered  








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            California's broader policies emphasizing cost-savings and  
            access.  Kaiser Permanente, with an oppose unless amended  
            position, states the need to wait until Covered California's  
            final action is determined before having a clear sense of  
            amendments that would be requested in this bill. The  
            Pharmaceutical Care Management Association points out, based  
            on the CHBRP analysis, for every dollar saved by someone with  
            a high-cost condition, everyone else in the system pays $6  
            based on increased overall spending.  


          9)Staff Comments. 


             a)   Caps on Copays. At their May 21, 2015 board meeting  
               where they discussed capping cost-sharing for drugs, the  
               Covered California board staff noted "there is a high  
               degree of uncertainty with the new introduction and  
               pharmaceutical pricing of specialty drugs which makes  
               projecting future year premium impacts difficult."  


               Given this, and given that Covered California already has  
               an inclusive and transparent public decision-making process  
               that reflects the involvement of multiple stakeholders,  
               where many of these issues have been publicly vetted, staff  
               notes the following advantages to maximizing alignment with  
               Covered California decisions with respect to cost-sharing  
               and formulary design: 


               1)     It establishes one standard for all plans to follow,  
                 minimizing compliance work.    


               2)     Covered California has the flexibility to evaluate  
                 and recommend changes based on market conditions, to  
                 ensure overall affordability is optimized on an ongoing  
                 basis and the overall design of benefits best serves  








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                 consumers. 


             b)   Other provisions. Staff suggests the author align as  
               closely as possible to existing rules and practice to  
               minimize potential fiscal impact and administrative burdens  
               on health plans and regulator.  


           1) Prohibiting tier assignment based solely on cost. The bill's  
             prohibition on placing prescription drugs on different tiers  
             based solely on cost appears incongruent in some cases with  
             the allowance of different tiers with different levels of  
             cost-sharing. For example, there may be no clinical reason to  
             place similarly effective drugs on one tier or another-they  
             may be placed that way based on the availability of a lower  
             negotiated price.  There does not appear to be a reason to  
             disallow this; indeed, this is what consumers want PBMs and  
             insurers to do on our behalf.  In addition, insulating  
             consumers utterly and completely from the cost of drugs,  
             particularly in the current era of very high-cost drugs  
             coming to market, is not necessarily protective of consumer  
             interests overall, as everyone ends up paying higher prices  
             or bringing home less in wages when health care costs rise.   
             This provision does not appear necessary to deter  
             discriminatory plan design. 


           2) Medication adherence. The provision requiring health plans  
             to demonstrate that proposed cost-sharing for a medically  
             necessary drug will not discourage medication adherence poses  
             fiscal risk.  The state regulation the author contends is  
             being replicated in statute by this provision simply includes  
             potential risk of adverse health outcomes and the projected  
             effect of cost-sharing on the affordability and accessibility  
             of coverage, as factors the Department of Managed Health Care  
             may consider when approving cost-sharing, limitations, or  
             exclusions in formulary design.  These current regulations  
             provide the DMHC, which regulates the vast majority of health  








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             insurance enrollment, appear to provide authority to  
             disapprove discriminatory benefit designs that harm  
             consumers.  The provision in the bill appears to require a  
             significantly higher standard of proof-indeed, a nearly  
             impossible standard-which could lead to an unnecessary  
             administrative burden on plans.  In addition, there is  
             significant fiscal risk to all payers for health care,  
             including the state, if the ability to impose cost-sharing is  
             only allowed where no negative impact on adherence can be  
             proactively demonstrated. This might pose questions about  
             whether cost-sharing is allowed at all. 


           3) Generosity of benefits.  One provision of this bill states,  
             notwithstanding existing laws and regulations, that a plan  
             must demonstrate their formularies do not reduce the  
             generosity of the benefit for enrollees with a particular  
             condition.  This also poses a high standard of proof to  
             proactively demonstrate, whereas federal guidance only  
             indicates plans and insurers will be notified when an  
             indication of such as reduction of generosity in some manner  
             is noted.


           4) Coverage of single-tablet and extended-release drugs.  
             Pharmaceutical benefit managers point out that mandating  
             coverage of extended-release drugs will enhance the ability  
             of pharmaceutical manufacturers to maintain monopoly prices  
             when drugs go off patent.  Again, the burden of proof to  
             refuse coverage of these drugs according to the bill's  
             provisions appears very high, essentially meaning they would  
             have to be covered.  With respect to the single-tablet  
             provision, Sovaldi (the infamous $1,000 Hepatitis C pill  
             manufactured by Gilead) is a single-tablet, whereas its  
             competitor, Viekera Pak is a twice-a-day pill.  Surely it is  
             in the overall fiscal interest of consumers to preserve the  
             ability of plans to negotiate for substantial discounts for a  
             twice-a-day regimen that costs substantially less than a  
             single-tablet version.  Given unknown future market dynamics,  








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             the author may wish to consider how well consumers are served  
             by the significant potential long-term fiscal consequences of  
             this bill's one-size-fits-all requirements.    





          Analysis Prepared by:Lisa Murawski / APPR. / (916)  
          319-2081