BILL ANALYSIS Ó AB 339 Page 1 Date of Hearing: May 27, 2015 ASSEMBLY COMMITTEE ON APPROPRIATIONS Jimmy Gomez, Chair AB 339 (Gordon) - As Amended May 20, 2015 ----------------------------------------------------------------- |Policy |Health |Vote:|12 - 5 | |Committee: | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | ----------------------------------------------------------------- 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. AB 339 Page 2 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). AB 339 Page 3 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 AB 339 Page 4 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: AB 339 Page 5 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 AB 339 Page 6 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 AB 339 Page 7 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 AB 339 Page 8 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 AB 339 Page 9 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 AB 339 Page 10 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, AB 339 Page 11 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