BILL ANALYSIS Ó AB 796 Page 1 Date of Hearing: January 12, 2016 ASSEMBLY COMMITTEE ON HEALTH Rob Bonta, Chair AB 796 (Nazarian) - As Amended January 4, 2016 SUBJECT: Health care coverage: autism and pervasive developmental disorders. SUMMARY: Requires the Board of Psychology (BOP) to convene a committee to create a list of evidence-based treatment modalities for purposes of developing mandated behavioral health treatment (BHT) modalities for pervasive development disorder or autism (PDD/A). Extends the sunset provisions requiring health care service plans to provide health coverage for BHT for PDD/A to January 1, 2022. EXISTING LAW: 1)Requires every health care plan that provides hospital, medical, or surgical coverage to provide coverage for BHT for PDD/A; 2)Does not require any benefits to be provided that exceed the essential health benefits (EHBs) required by federal regulations pursuant to the federal Patient Protection and Affordable Care Act; AB 796 Page 2 3)Exempts from 1) above a specialized health plan or health insurance policy that does not deliver mental health or behavioral health services to enrollees, or an accident only, specified disease, hospital indemnity, or Medicare supplement policy, a health plan contract or health insurance policy under Medi-Cal or Healthy Families program, and a health care benefit plan or contract pursuant to the Public Employees' Retirement System. 4)Requires health care plans to maintain an adequate network that includes qualified autism service (QAS) providers who supervise and employ QAS professionals or paraprofessionals who provide and administer BHT; 5)Sunsets above provisions requiring health care service plans to provide health coverage for BHT for PDD/A on January 1, 2017. 6)Defines "Behavioral health treatment" as professional services and treatment programs, including applied behavior analysis and evidence-based behavior intervention programs, that develop or restore, to the maximum extent practicable, the functioning of an individual with PDD/A and that meet all of the following criteria: a) The treatment is prescribed by a licensed physician and surgeon, or is developed by a licensed psychologist; b) The treatment is provided under a treatment plan prescribed by a QAS provider and is administered by one of the following: AB 796 Page 3 i) A QAS provider; ii) A QAS professional supervised and employed by the QAS provider; or, iii) A QAS paraprofessional supervised and employed by a QAS provider. c) The treatment plan has measurable goals over a specific timeline that is developed and approved by the QAS provider for the specific patient being treated. 7)Requires a treatment plan to be reviewed no less than once every six months by the QAS provider and modified whenever appropriate, and in which the QAS provider does all of the following: a) Describes the patient's behavioral health impairments or developmental challenges that are to be treated; b) Designs an intervention plan that includes the service type, number of hours, and parent participation needed to achieve the plan's goal and objectives, and the frequency at which the patient's progress is evaluated and reported; c) Provides intervention plans that utilize evidence-based practices, with demonstrated clinical efficacy in treating PDD/A; and, d) Discontinues intensive behavioral intervention services when the treatment goals and objectives are achieved or no AB 796 Page 4 longer appropriate. 8)Prohibits the treatment plan from being used for purposes of providing respite, day care, or educational services or reimbursement and from being used to reimburse a parent for participating in the treatment program; 9)Requires the treatment plan to be made available to the health care plan upon request. 10)Defines "Qualified autism service provider" as either of the following: a) A person, entity, or group that is certified by a national entity, such as the Behavior Analyst Certification Board, that is accredited by the National Commission for Certifying Agencies, and who designs, supervises, or provides treatment for PDD/A, provided the services are within the experience and competence of the person, entity, or group that is nationally certified; or, b) A person licensed as a physician and surgeon, physical therapist, occupational therapist, psychologist, marriage and family therapist, educational psychologist, clinical social worker, professional clinical counselor, speech-language pathologist, or audiologist, who designs, supervises, or provides treatment for PDD/A, provided the services are within the experience and competence of the licensee. 11)Defines "Qualified autism service professional" as an individual who meets all of the following criteria: AB 796 Page 5 a) Provides BHT; b) Is employed and supervised by a QAS provider; c) Provides treatment pursuant to a treatment plan developed and approved by the QAS provider; d) Is a behavioral service provider approved as a vendor by a California regional center to provide services as an Associate Behavior Analyst, Behavior Analyst, Behavior Management Assistant, Behavior Management Consultant, or Behavior Management Program; and, e) Has training and experience in providing services for PDD/A, as specified. 12)Defines a "Qualified autism service paraprofessional" as an unlicensed and uncertified individual who meets all of the following criteria: a) Is employed and supervised by a QAS provider; b) Provides treatment and implements services pursuant to a treatment plan developed and approved by the QAS provider; c) Meets the criteria set forth in the regulations adopted pursuant to Section 4686.3 of the Welfare and Institutions Code; and, AB 796 Page 6 d) Has adequate education, training, and experience, as certified by a QAS provider. 13)Establishes the BOP, which consists of nine members, five of which are professional members and four are public member. Requires the BOP to enforce and administer the Psychology Licensing Law. 14)Provides for the licensure, registration, and regulation of psychologists and psychological assistants under the Psychology Licensing Law. FISCAL EFFECT: This bill has not yet been analyzed by a fiscal committee. COMMENTS: 1)PURPOSE OF THIS BILL. According to the author, this bill recognizes that there is no one size fits all BHT for an individual diagnosed with autism. Every child on the autism spectrum presents differently, as such treatment options must reflect that spectrum. The author states that this bill ensures children diagnosed with autism will receive insurance coverage for the type of evidence-based BHT that is right and selected for them by the medical professional that knows the child best. 2)BACKGROUND. a) DMHC Autism Advisory Task Force. SB 946 (Steinberg), Chapter 650, Statutes of 2011, requires the California Department of Managed Health Care (DMHC) to convene an Autism Advisory Task Force (Task Force) by February 1, 2012, to develop recommendations regarding medically AB 796 Page 7 necessary BHT for individuals with PDD/A, as well as the appropriate qualifications, training, and supervision for providers of such treatment. SB 946 also requires the Task Force to develop recommendations regarding the education, training, and experience requirements that unlicensed individuals providing BHT must meet in order to obtain licensure from the state. The Task Force consisted of 18 members including research experts, treating providers, health plan representatives, consumer advocates, and members-at-large, many of whom were also parents of individuals with PDD/A. The Task Force concluded that behavioral health interventions need to be highly individualized and that treatment selection should be made by a team of individuals who can consider the unique needs and history of the individual with PDD/A. The Task Force determined that it would not be informative to state policy makers to merely develop a list of BHTs that are determined to be effective, based solely on current scientific literature. b) California Health Benefits Review Program (CHBRP) Analysis. AB 1996 (Thomson), Chapter 795, Statutes of 2002, requests the University of California to assess legislation proposing or repealing a health coverage mandated benefit or service and prepare a written analysis with relevant data on the medical, economic, and public health impacts of the proposed legislation. CHBRP was created in response to AB 1996. SB 125 (Ed Hernandez), Chapter 9, Statutes of 2015, added an impact assessment on EHBs, and legislation that impacts health insurance benefit designs, cost sharing, premiums, and other health insurance topics. CHBRP completed an analysis of AB 796 on April 21, 2015. However, the CHBRP analysis of this bill was on the introduced version, which changed the definition of QAS professional and QAS paraprofessional and no increase in AB 796 Page 8 cost and benefit was identified. CHBRP points out, in a letter responding to a request by the Committee for an updated analysis of this bill, that as the Legislature considers the current version of this bill, aspects of California law and federal law that may be relevant include the following: "First, California's current Essential Health Benefit (EHB) base benchmark plan, effective through December 31, 2016, was influenced by the current benefit mandate (established by SB 946 in 2011). Similarly, California's 2017 EHB base benchmark plan, was influenced by the current benefit mandate. Therefore, the provisions of SB 946 may be relevant to the small-group market and individual market plans and policies required to cover EHBs regardless of whether the current benefit mandate sunsets. This issue may warrant further analysis as well as review by both the California Department of Managed Health Care (DMHC) and the California Department of Insurance (CDI). Second, in terms of requiring coverage for intensive behavioral intervention therapy (IBIT) as a treatment for PDD/A, there may be overlap between the current benefit mandate and California's mandate regarding mental health parity, which are applicable to all DMHC-regulated plans and all CDI-regulated policies. However, were the provisions of the current benefit mandate (established by 2011's SB 946) to sunset, the definitions of QAS AB 796 Page 9 professionals, QAS paraprofessionals, and QAS providers might change, which could affect access to and utilization of IBIT. This issue, too, may warrant further analysis as well as review by both DMHC and CDI." c) Pervasive Developmental Disorders and Autism. PDD/As are neurodevelopmental disorders that typically become symptomatic in children aged two to three years. They are chronic conditions characterized by impairments in social interactions, communication, sensory processing, repetitive behaviors or interests, and sometimes cognitive function. Symptoms range from mild to severe, as reflected by the phrase "autism spectrum disorders" (ASD). CHBRP estimates that approximately 87,000 Californians have PDD/A. Many persons with PDD/A (primarily children) are treated with IBITs, which aim to improve behavior, cognitive function, language, and social skills. d) Behavioral Health Treatment. Behavior analysis focuses on the principles that explain how learning takes place. Positive reinforcement is one such principle. When a behavior is followed by some sort of reward, the behavior is more likely to be repeated. Through decades of research, the field of behavior analysis has developed many techniques for increasing useful behaviors and reducing those that may cause harm or interfere with learning. ABA is the use of these techniques and principles to bring about meaningful and positive change in behavior. ABA emerged in the early 1960's as a treatment therapy and is therefore one of the most researched and recognized therapies. However, PDD/A is a complex disorder that impacts every child differently and typically involves more AB 796 Page 10 than one type of treatment therapy, of which there are many. Other therapies include the Early Start Denver Model, a developmental, relationship-based intervention approach that utilizes teaching techniques consistent with ABA, Developmental, Individual-differences, & Relationship-based Floortime (DIR/Floortime) a specific technique to both follow the child's natural emotional interests and at the same time challenge the child towards mastery of the social, emotional, and intellectual capacities. e) IMR. Individuals covered by health plans or health insurers in California are entitled to an Independent Medical Review (IMR) if a health plan or insurer denies health care services or payment for health care services based on medical necessity. An IMR is a process where expert independent medical professionals are selected to review specific medical decisions made by the plans or insurers. DMHC and CDI administer the IMR program to enable consumers to request an impartial appraisal of medical decisions within certain guidelines specified in law. An IMR can only be requested if the plan or insurer's decision involves the medical necessity of a treatment, an experimental or investigational therapy for certain medical conditions, or a claims denial for emergency or urgent medical services. According to CDI, between the years of 2011-15, 76 behavioral intensive therapy or applied behavioral analysis cases have gone to IMR and 56, or approximately 74%, were overturned. According to the DMHC, since 2009, 93% of 148 disputes brought to DMHC by consumers, whose health plans have denied some form of autism treatment, have been resolved in favor of the consumer. f) Board of Psychology. The BOP is one of 30 regulatory AB 796 Page 11 entities which fall under the organizational structure of the Department of Consumer Affairs. The BOP regulates psychologists, registered psychologists, and psychological assistants. Only licensed psychologists can practice psychology independently in the private sector in California. Registered psychologists are registered to work and train under supervision in non-profit agencies that receive government funding and registered psychological assistants are employed and supervised by a qualified licensed psychologist in private settings. The BOP consists of nine appointed members and is composed as follows: i) five licensed psychologists appointed by the Governor; ii) two public members appointed by the Governor; iii) one public member appointed by the Senate Rules Committee; and, iv) one public member appointed by the Speaker of the Assembly. Board members are appointed to the BOP for four-year terms and each member may serve a maximum of two terms. The BOP is funded through license, application, and examination fees. 3)SUPPORT. Hundreds of individuals writing in support of a previous version of this bill state that by requiring frontline providers to be vendored by the regional centers, SB 946 limits treatment for ASD to only one therapy, ABA. This bill would apply the same level of requirements to other evidence-based forms of therapy and will allow parents the opportunity to receive insurance coverage for the BHT that is the most appropriate for their child. AB 796 Page 12 The DIR/Floortime Coalition of California writes in strong support to a previous version of the bill that by allowing frontline personnel trained in the specific form of treatment contained within the scope of the treatment plan developed by their physician or psychologist, parents, and treatment providers will be able to seek the most appropriate treatment for their child with Autism. 4)OPPOSITION. Center for Autism & Related Disorders (CARD) states in opposition to a previous version of this bill, that it will amend California's landmark autism mandate to expand the definition of "qualified autism service professional" to include individuals who are not qualified to provide evidence-based BHT and who were never intended to be included in the definition of QAS professional. CARD argues that the effectiveness of evidence-based autism treatment requires trained and experienced individuals to oversee and implement it. 5)RELATED LEGISLATION. SB 479 (Bates) establishes the Behavior Analyst Act which requires a person to apply for and obtain a license from the BOP prior to engaging in the practice of behavior analysis, as defined, either as a behavior analyst or an assistant behavior analyst, and meet certain educational and training requirements. SB 479 is pending in the Assembly Appropriations Committee. 6)PREVIOUS LEGISLATION. a) AB 2041 (Jones) of 2014, would have required that a regional center classify a vendor as a behavior management consultant or behavior management assistant if the vendor AB 796 Page 13 designs or implements evidence-based BHT, has a specified amount of experience in designing or implementing that treatment, and meets other licensure and education requirements. AB 2041 would have required the Department of Developmental Services to amend its regulations as necessary to implement the provisions of the bill. AB 2041 died in the Senate Appropriations Committee. b) SB 126 (Steinberg), Chapter 680, Statutes of 2013, extends the operation of the BHT mandate until January 1, 2017. c) SB 946 requires health plans and health insurance policies to cover BHT for PDD/A, requires plans and insurers to maintain adequate networks of autism service providers, establishes an Autism Advisory Task Force in the Department of Managed Health Care, and sunsets autism mandate provisions on July 1, 2014. 7)DOUBLE REFERRAL. This bill is double referred and is currently set for hearing on January 12, 2016 in the Assembly Business and Professions Committee. 8)COMMITTEE AMENDMENTS. a) Report Requirements. This bill requires the BOP to convene a committee to create a list of evidence-based treatment modalities. To ensure that the resulting list is available for appropriate use, the Committee may wish to consider requiring the BOP to post its findings on their Website no later than January 1, 2019. b) Clarifying Amendment. This bill currently states that AB 796 Page 14 the evidence-based treatment modalities should be established for purposes of developing mandated BHT modalities. Coverage for BHTs is a mandate established by federal and state mental health parity laws and this bill does not seek to alter that in anyway. The Committee may wish to amend this bill as follows: No later than December 31, 2017, and thereafter as necessary, the Board of Psychology, upon appropriation of the Legislature, shall convene a committee to create a list of evidence-based treatment modalities for purposes of behavioral health treatment for pervasive developmental disorder or autism. REGISTERED SUPPORT / OPPOSITION: Support 327 Individuals Opposition Autism Research Group (previous version) Center for Autism & Related Disorders (previous version) Analysis Prepared by:Paula Villescaz / HEALTH / (916) 319-2097 AB 796 Page 15