BILL ANALYSIS Ó AB 366 Page 1 Date of Hearing: April 14, 2015 ASSEMBLY COMMITTEE ON HEALTH Rob Bonta, Chair AB 366 (Bonta) - As Amended April 7, 2015 SUBJECT: Medi-Cal: reimbursement: provider rates. SUMMARY: Increases rates paid to providers in the Medi-Cal program to the comparable rate paid in the Medicare program. Specifically, this bill: 1)Repeals implementation of prior year Medi-Cal rate reductions, including the 10 % reduction for affected Medi-Cal providers. 2)Increases rates paid to Medi-Cal primary care providers upon expiration of the temporary increases required by state and federal law. 3)Increases reimbursement rates for other Medi-Cal providers to the amounts reimbursed by the federal Medi-care program for the purpose of ensuring access to health care services and to comply with federal Medicaid requirements regarding access to care and services. 4)Increases reimbursement rates for Denti-Cal providers by AB 366 Page 2 equivalent rate of increase for other Medi-Cal providers for the purpose of ensuring access to medically necessary dental services and to comply with federal Medicaid requirements regarding access to care and services. 5)Increases payment rates to Medi-Cal fee-for-service (FFS) providers to not less than the payment rate in the Medicare program for the same services. 6)Increases rates paid to Medi-Cal managed care plans and requires the rates to be actuarially equivalent to the payment rate established in Medicare. 7)Increases hospital Medi-Cal rates for inpatient hospital services on a one-time basis and then requires annual increases linked to the medical component of the California consumer price. 8)Increases Medi-Cal managed care health plans by a proportionately equal amount for increased payments for hospital services. 9)Conditions granting rate increases on compliance with applicable federal law and regulations, availability of federal financial participation, and obtaining necessary federal approvals. AB 366 Page 3 10)Authorizes the Department of Health Care Services (DHCS) to implement through provider bulletins or other similar instructions until July 1, 2018 at which time DHCS is required to adopt regulations. 11)Contains an urgency clause and will go immediately into effect. EXISTING LAW: 1)Establishes the Medi-Cal program, administered by DHCS, under which qualified low-income patients receive health care benefits. Medi-Cal is California's version of the federal Medicaid program in which funding is provide by both the state and federal government. 2)Requires Medi-Cal provider payments and payments to Medi-Cal managed care plans to be reduced by 10% for dates of service on and after June 1, 2011. AB 366 Page 4 FISCAL EFFECT: This bill has not been analyzed by a fiscal committee. COMMENTS: 1)PURPOSE OF THIS BILL. According to the author, this bill would provide critical stability to health care provider networks and ensure access to health care services for people receiving services in the Medi-Cal program. The author notes that with the dramatic expansion of enrollment in California's Medi-Cal program, it makes no sense to continue Medi-Cal provider rate reductions that limit access to care that were enacted during California's economic downturn. California already pays its Medi-Cal FFS providers some of the lowest rates in the entire country (for primary care and obstetric care, California ranked 48th among all states in 2012, and overall, Medi-Cal compensated physicians at only 51 % of Medicare levels). Having expanded Medi-Cal under the Affordable Care Act (ACA), California needs to ensure that Medi-Cal provider rates provide sufficient access to Medi-Cal beneficiaries. In order for the expansion of Medi-Cal program to result in access to care, an adequate number of health care providers must be available to provide care to Medi-Cal patients. 2)BACKGROUND. a) Medi-Cal. Medicaid (known as Medi-Cal in California) is a joint federal-state program to provide health coverage to low-income individuals. With the enactment of the ACA and California's implementation of the Medi-Cal expansion, California has taken a major step toward filling gaps in health coverage and removing financial barriers that limit access to health care. Millions of low- to moderate-income individuals have gained health benefits as states expand AB 366 Page 5 their Medicaid programs and develop their marketplaces for private health plans. In 2010, 7.4 million people were covered by Medi-Cal. Today, 11.9 million people - nearly one in three Californians - are enrolled in the program. With the Medi-Cal program projected to cover 12.2 million people in 2015-16, access to care can be a problem for those who have coverage, particularly if Medi-Cal plan and provider rates are below those paid by other payors. b) Access. Surveys of Californians conducted before coverage expansions enacted under the ACA consistently showed a wide gap between Medi-Cal enrollees and other insured populations with respect to access to care. A 2011 survey funded by the California HealthCare Foundation (CHCF) of over 1,500 Medi-Cal beneficiaries identified difficulties in finding health care providers who accept their coverage, as 34% of Medi-Cal beneficiaries said it was difficult to find health care providers who accept their insurance, compared to 13% for people with other coverage. The survey found a higher percentage of adults with Medi-Cal say they have more difficulty getting appointments with specialists and primary care providers than adults with other health coverage (42% v. 24% for specialists and 26% v. 15% for primary care providers). Similarly, the 2012 California Health Interview Survey asked how access to care in Medi-Cal compares to access to care in employer-sponsored insurance (ESI) for adults with similar health care needs. Medi-Cal had bigger gaps in access to care, including Medi-Cal beneficiaries being less likely to have a usual source of care other than the emergency room as compared to individuals with ESI (21.5% v. 8.1%, Medi-Cal beneficiaries were more likely to have used the emergency room than individuals with ESI (3.7% v. 0.5%), and Medi-Cal beneficiaries were either sometimes or never able to get a physician appointment within two days AB 366 Page 6 of seeking an appointment compared to individuals with ESI (46% v. 20.6%). In addition to surveys of beneficiaries, surveys of physicians and dentists have found lower participation in Medi-Cal and lower reimbursement rates as compared to Medicare and private insurance. A survey of physicians through the Medical Board of California found the percentage of California physicians accepting new patients in 2013 was 62% for Medi-Cal, compared to 79% for private insurance and 75% for Medicare. The percentage of physicians with any Medi-Cal patients in their practice (69%) was significantly lower than the percentage with any Medicare patients (77%) and much lower than the percentage with any privately insured patients (92%). A December 2012 publication by the Kaiser Commission on Medicaid and the Uninsured (KCMU) showed how states compare in their 2012 Medicaid fee levels, and how Medicaid fees compared to Medicare fees. In California, Medi-Cal fees for all services were 51% of Medicare, primary care physician fees were 43% of Medicare, obstetrical care services were 54% of Medicare, and other services were 67% of Medicare. A December 2014 Bureau of State Audits (BSA) review of California's Denti-Cal Program found that California had similar access to care problems for children needing dental services, as five counties may lack active providers, an additional 11 counties had no providers willing to accept new Medi-Cal patients, and 16 other counties appear to have an insufficient number of providers. The BSA stated a primary reason for low dental provider participation rates is low reimbursement rates compared to national and regional averages and to the reimbursement rates of other states BSA examined. c) Primary Care Access. The expansion of Medicaid under the ACA has exacerbated concerns about whether the supply of primary care providers would be sufficient to ensure access to care for this new population, particularly given low reimbursement rates offered by many Medicaid programs. AB 366 Page 7 For this reason, the ACA included a so-called "primary care bump," which required states, for 2013 and 2014, to increase their Medicaid primary rates to those rates provided by Medicare, and provided states 100% federal funds to make up the difference between state rates and Medicare rates. Final federal regulations were released in November 2012, but a state plan amendment implementing the federal requirement was only approved October 24, 2013, nearly 11 months after the effective date. The impact on physician acceptance of Medi-Cal is unclear at this point, given that the Medi-Cal expansion just started in January 2014, the dollars actually started flowing out to providers on a retroactive basis in November 2013, the payment bump is expected to expire in 2015, and there are other, massive changes happening throughout the health care system. Observers have noted that states and the federal government will need to make decisions about whether to extend these increased rates or let them expire before it is clear how they affect provider behavior. d) Recent Actions on Medi-Cal Rates. While the number of people receiving health care through Medi-Cal has grown dramatically, beginning in 2008, Medi-Cal payment rates to health plans and providers in the program have been reduced to help address the state budget deficits. In 2011, the Legislature passed and Governor Brown signed AB 97 (Committee on Budget), Chapter 3, Statutes of 2011, into law, which largely replaced prior Medi-Cal rate reductions and which remains in effect. Major provisions of AB 97 include the following: i) Reduced Medi-Cal provider payments by 10% for FFS benefits for dates of service on and after June 1, 2011; AB 366 Page 8 ii) Required Medi-Cal managed care plan rates to be reduced by the actuarial equivalent amount of the FFS reduction, effective July 1, 2011; iii) Froze rates at the 2008-09 rate year and then applied the 10% rate reduction for certain types of facility providers; iv) Required the payment reductions to be applied retroactively to June 1, 2011 or on such other date as may be applicable when federal approval is obtained; v) Conditioned the implementation of the payment reductions on the reductions complying with federal Medicaid requirements; vi) Granted the Director of DHCS the discretion to not implement a particular payment reduction or adjustment, or to adjust the payment as necessary to comply with federal Medicaid requirements, to the extent that the director determines that the payments do not comply with the federal Medicaid requirements or that federal financial participation is not available with respect to any payment that is reduced; and, vii) Prohibited implementation of AB 97 until federal approval was obtained. Federal approval of the AB 97 rate reductions was obtained in October 2011, but a court injunction prevented DHCS from implementing many of these reductions. In June 2013, the injunctions were lifted, giving the state authority to (1) apply the reductions to current and future payments to AB 366 Page 9 providers on an ongoing basis; and, (2) retroactively recoup the reductions from past payments that were made to providers during the period in which the injunctions were in effect (this is commonly referred to as a "claw back"). Since the 2013-14 budget was enacted, several types of providers and services have been exempted from the ongoing payment reductions through either administrative decisions by DHCS or through subsequently enacted legislation. DHCS administratively exempted from the AB 97 rate reduction the following providers/services: i) Pediatric health care; ii) Audiology rates by a particular type of provider; iii) Residential care facilities for the elderly and care coordinator agencies; iv) Genetic disease screening program; v) Community-based adult services providers located in San Francisco; vi) Non-profit dental pediatric surgery centers that provide at least 99% of their services under general anesthesia to children with severe dental disease under age 21; vii) For-profit dental pediatric surgery centers that AB 366 Page 10 provide services to at least 95% of their Medi-Cal beneficiaries under age 21; and, viii) Certain prescription drugs (or categories of drugs) that are generally high-cost drugs used to treat extremely serious conditions, such as hemophilia, multiple sclerosis, hepatitis. Medi-Cal managed care plans were also exempt from the retroactive recoupment. Providers subject to the retroactive payment recoveries include pharmacies, durable medical equipment/supply providers, clinical laboratories/laboratory services, and radiology service providers. DHCS has indicated these retroactive payment recoveries will not occur until after the prospective 10% provider payment reductions are implemented, and DHCS has indicated it will provide at least 60 days advanced notification of scheduled recoveries. DHCS assumes total fund savings from the AB 97 reductions of $550 million ($275 million General Fund) in 2015-16. e) Medi-Cal FFS. Medi-Cal rates and access to care requirements vary by FFS versus managed care, and are governed by a complex mix of state and federal laws and regulations, administrative decisions by DHCS and the federal Centers for Medicare and Medicaid Services (CMS), and court interpretation of federal Medicaid requirements. Medicaid is a cooperative federal-state program, and in order to qualify for federal funds, states must submit their Medicaid plan and any amendments to CMS. Before approving a AB 366 Page 11 Medicaid State Plan Amendments (SPA), CMS conducts a review to determine whether they comply with federal requirements. For the AB 97 FFS rate reductions, the state submitted several SPAs for federal approval. Relevant federal law (Section 1902(a)(30)(A) of the Social Security Act) for the AB 97 SPAs is as follows (emphasis added): "provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan . . . as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area;" As a condition of approval of the AB 97 FFS rate reductions in California's SPA, CMS required DHCS to monitor health care access. DHCS was required to provide metrics which adequately demonstrated beneficiary access to CMS, and a monitoring plan that would apply to the services where rates were being reduced. DHCS developed a health care access monitoring system to better detect if Medi-Cal beneficiaries are experiencing difficulties accessing health care services in FFS Medi-Cal. CMS indicated DHCS would monitor predetermined metrics on a quarterly or annual basis in order to ensure the beneficiary access is comparable to services available to the general population in the geographic area. DHCS indicates it will report on 23 access measures annually and a subset of four access measures quarterly. The four areas reported quarterly are changes in physician supply, Medi-Cal beneficiary participation, service utilization rates per 1,000 member months, and beneficiary feedback. f) Medi-Cal Managed Care. Medi-Cal managed care rates are AB 366 Page 12 also set under state and federal requirements. State law requires DHCS to pay capitation rates to health plans participating in the Medi-Cal managed care program using actuarial methods under what is commonly referred to as the "Mercer methodology" (Mercer is DHCS' actuarial consulting firm). Medi-Cal managed care plans must provide DHCS with financial and utilization data to establish rates. DHCS is required to utilize a county- and model-specific rate methodology to develop Medi-Cal managed care capitation rates that includes, but is not limited to, all of the following: i) Health plan-specific encounter and claims data; ii) Supplemental utilization and cost data submitted by the health plans; iii) FFS data for the underlying county of operation or other appropriate counties as deemed necessary by DHCS; iv) DMHC financial statement data specific to Medi-Cal operations; and, v) Other demographic factors, such as age, gender, or diagnostic-based risk adjustments, as DHCS deems appropriate. Federal regulations for Medicaid managed care plans require all payments under risk contracts (such as to Medi-Cal managed care plans) and all risk-sharing mechanisms in contracts to be actuarially sound. The requirement for actuarially sound capitation rates means capitation rates that: i) Have been developed in accordance with generally accepted actuarial principles and practices; ii) Are appropriate for the populations to be covered, and the services to be furnished under the contract; and, AB 366 Page 13 iii) Have been certified by actuaries who meet the qualification standards established by the American Academy of Actuaries and follow the practice standards established by the Actuarial Standards Board. For enrollees of Medi-Cal managed care plans, DHCS has requirements for network adequacy in existing law, regulation, contracts with health plans, and through All Plan Letters issued by DHCS. For example, DHCS contractually requires Medi-Cal managed care plans to abide by the time and distance standards in the Knox-Keene Health Care Service Plan Act of 1974 (Knox Keene Act). The Knox-Keene Act is the body of law regulating health plans, and it requires a primary care physician to be no more than 15 miles or 30 minutes from the place of residence or work of the member unless the member chooses a different provider; the Medi-Cal standard is 10 miles from a member's residence unless the plan has a DHCS-approved alternative. In addition, the Knox-Keene Act requires Medi-Cal managed care plans (except for County Organized Health Systems, which are exempt from the Knox-Keene Act) to make all services be readily available at reasonable times to each enrollee consistent with good professional practice. Regulations implementing the Knox-Keene Act require timely access to care by requiring urgent and non-urgent appointments to be provided within specified timeframes. Health plan members have the right to appointments within the following time frames: f) The Legislative Analyst's Office (LAO) review. The LAO in their 2014-15 analysis of health reviewed DHCS' baseline analysis and quarterly monitoring reports. The LAO came away with numerous concerns about the quality of the DHCS data, the soundness of the methodologies, and the assumptions underlying the administration's findings on FFS access. In the LAO's view, these concerns are sufficient AB 366 Page 14 to render the administration's public reporting of very limited value for the purpose of understanding beneficiary access in the FFS system. The LAO specifically cited inflated estimates of available FFS physicians and a flawed construction and interpretation of enrollee-to-physician ratios that failed to take into account physicians accepting new patients. Regarding Denti-Cal coverage (which is primarily provided through FFS Medi-Cal), the LAO stated that, because dental care will remain primarily a FFS benefit for the foreseeable future, it recommended the Legislature enact legislation that would create meaningful standards for monitoring Denti-Cal access. 2)SUPPORT. The We Care for California Coalition, who represents the largest statewide organizations of physicians, dentists, hospitals, health care workers, community health clinics, health plans, first responders, caregivers, and other health providers, is the sponsor of the bill, arguing this bill is necessary to ensure Medi-Cal recipients have real access to health care. They note that as California's Medi-Cal program as grown to serve over 12 million people, patients throughout the state are experiencing significant hurdles receiving care due to California's low reimbursement rates paid to Medi-Cal provider, one of the lowest reimbursement rates in the country. As a result of the low rates, patients on Medi-Cal frequently express frustration about limited provider availability and delays in accessing care. The supporters note that Californians who rely on Medi-Cal for health insurance are often unable to get medical services and often must turn to hospital emergency rooms for access to healcare, demonstrating that the low rates have negatively impacted the health of all Californians. Supporters conclude that although California law promises Medi-Cal beneficiaries access to needed medical care in timely manner, patients and providers know that promise is not being met. 3)RELATED LEGISLATION. SB 243 (Ed Hernandez) is virtually identical to this bill. SB 243 is currently pending in Senate AB 366 Page 15 Health Committee. 4)PREVIOUS LEGISLATION. a) AB 1805 (Skinner and Pan) would have required DHCS to disregard the 10% payment reductions for Medi-Cal providers, to the maximum extent permitted by federal law and for the maximum time period for which federal financial participation is obtained. AB 1805 was set for hearing in the Assembly Appropriations Committee, but the hearing was cancelled at the request of the author. b) AB 900 (Alejo) of 2013 would have eliminated scheduled Medi-Cal payment reductions for distinct part skilled nursing facilities. AB 900 was held on the Appropriations Committee suspense file. c) SB 646 (Nielsen) of 2013 was similar to AB 900 and was held in the Senate Appropriations Committee. d) SB 640 (Lara) of 2013 would have required scheduled Medi-Cal payment reductions not apply to Medi-Cal provider and managed care health plans for services delivered after June 1, 2011. SB 640 was held on the suspense file of the Senate Appropriations Committee. e) SB 640 (Lara) would have required scheduled Medi-Cal payment reductions not apply to Medi-Cal provider and managed care health plans for services delivered after June 1, 2011. SB 640 was held on the suspense file of the Senate Appropriations Committee. AB 366 Page 16 f) AB 5 X3 (Committee on Budget), Chapter 3, Statutes of 2007-08 Third Extraordinary Session, reduced Medi-Cal provider fee-for-service payments and payments to Medi-Cal managed care plans by 10% effective July 1, 2008, and also reduced payments for specified non-Medi-Cal programs in a similar manner and reduced non-contract Medi-Cal hospital payments as specified. AB 5 X3 exempted specified providers from payment reductions. g) AB 1183 (Committee on Budget), Chapter 758, Statutes of 2008, rendered inoperative the AB 5 X3 rate reduction provisions on February 28, 2009, and applied various payment reductions to other providers. h) AB 5 X4, for specified providers, froze Medi-Cal payment rates for services provided in the 2009-10 rate year and beyond, by prohibiting reimbursement rates from exceeding rates applicable in the 2008-09 rate year after the 5% reduction mandated by AB 1183. i) AB 97 requires the rate reductions required by AB 1183 and AB 5 X4 not be instituted for services delivered on or after June 1, 2011 (with specified exceptions). Reduces Medi-Cal provider FFS and managed care payments by 10% effective June 1, 2011. Reduces payments for non-Medi-Cal programs for services on and after June 1, 2011, with exceptions. AB 97 was dependent upon federal approval and specified that payment reductions would be collected retroactively to June 1, 2011. Federal approval was obtained October, 2011 and effectively voided the payment reductions mandated in AB 1183 and AB 5 X4. j) AB 102 (Committee on Budget), Chapter 29, Statutes of 2011, continued the 1% and 5% Medi-Cal reductions set to expire effective June 1, 2011, until the reimbursement AB 366 Page 17 reductions specified in AB 97 received federal approval, at which time payments were to be collected retroactively back to June 1, 2011. REGISTERED SUPPORT / OPPOSITION: Support We Care for California (sponsor) Adventist Health Alliance of Catholic Health Care American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO AMR Anthem Blue Cross The Arc and United Cerebral Palsy California Collaboration Association of California Healthcare Districts Association of Northern California Oncologists Blue Shield of California California Academy of Audiology California Academy of Family Physicians California Ambulance Association California Association of Medical Products Suppliers California Association of Physician Groups California Chapter of the American College of Emergency Physicians California Children's Hospital Association California Clinical Laboratory Association AB 366 Page 18 California Commission on Aging California Coverage & Health Initiatives California Dental Association California Dialysis Council California Hospital Association California Labor Federation California Medical Association California Medical Transportation Association California PACE Association California Pharmacists Association California Primary Care Association California Radiological Society California School Employees Association California Society of Anesthesiologists California Society of Plastic Surgeons California. Society of Pathologists Children's Defense Fund-California Children Now Children's Partnership DaVita HealthCare Partners Dignity Health Health Access California Health Net Kaiser Permanente LIUNA Locals 777&792 Maxim Healthcare Services Medical Oncology Association of Southern California, Inc. Molina Healthcare of California National Association of Chain Drug Stores National Coalition of Assistive and Rehab Technology Occupational Therapy Association of California Osteopathic Physicians and Surgeons of California Paramedics Plus PICO California Planned Parenthood Action Fund of Santa Barbara, Ventura and San Luis Obispo Counties, Inc. Planned Parenthood Action Fund of the Pacific Southwest Planned Parenthood Advocacy Project Los Angeles County Planned Parenthood Affiliates of California AB 366 Page 19 Planned Parenthood Mar Monte Planned Parenthood Northern California Action Fund Planned Parenthood of Orange and San Bernardino Counties Private Essential Access Community Hospitals Providence Health & Services Rural County Representatives of California SEIU-UHW United Ways of California Several individuals Opposition None on file. Analysis Prepared by:Roger Dunstan / HEALTH / (916) 319-2097