Amended in Assembly April 13, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2372

Introduced by Assembly Member Burke

(Principal coauthor: Assembly Member Waldron)

(Principal coauthor: Senator Hertzberg)

February 18, 2016

An act to amend Section 1367.03 of, and to add Section 1367.693 to, the Health and Safety Code, and to amend Section 10133.5 of, and to add Section 10123.833 to, the Insurance Code, relating to health care coverage.

LEGISLATIVE COUNSEL’S DIGEST

AB 2372, as amended, Burke. Health care coverage: HIV specialists.

Existing law, the Knox-Keene Health Care Service Plan Act of 1975, provides for the licensure and regulation of health care service plans by the Department of Managed Health Care. A willful violation of the act is a crime. Existing law also provides for the regulation of health insurers by the Department of Insurance. Existing law requires the Department of Managed Health Care and the Insurance Commissioner to adopt regulations to ensure that enrollees and insureds have access to needed health care services in a timely manner. Existing law requires the Department of Managed Health Care to develop indicators of timeliness of access to care, including waiting times for appointments with physicians, including primary care and speciality physicians. Existing law requires the Insurance Commissioner to adopt regulations that ensure, among other things, the adequacy of the number of professional providers in relationship to the projected demands for services covered under the group policy.

This bill would define for these purposes “specialty physician” and “professional provider,” respectively, to include a physician who meets the criteria for an HIV specialist, as specified. The bill would require a health care service plan contract or health insurance policy that is issued, amended, or renewed on or after January 1, 2017, to include an HIV specialist, as defined, as an eligible primary care begin delete physician, provided that he or she end delete begin insert provider, as defined, if the provider requests primary care provider status and end insert meets the plan’s or health insurer’s eligibility criteria for all specialists seeking primary care begin delete physician end delete begin insert provider end insert status. Because a willful violation of these requirements by a health care service plan would be a crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1367.03 of the Health and Safety Code
is amended to read:

1367.03.  

(a) The department shall develop and adopt
regulations to ensure that enrollees have access to needed health
care services in a timely manner. In developing these regulations,
the department shall develop indicators of timeliness of access to
care and, in so doing, shall consider the following as indicators of
timeliness of access to care:

(1) Waiting times for appointments with physicians, including
primary care and specialty physicians.

(2) Timeliness of care in an episode of illness, including the
timeliness of referrals and obtaining other services, if needed.

(3) Waiting time to speak to a physician, registered nurse, or
other qualified health professional acting within his or her scope
of practice who is trained to screen or triage an enrollee who may
need care.

(b) In developing these standards for timeliness of access, the
department shall consider the following:

(1) Clinical appropriateness.

(2) The nature of the specialty.

(3) The urgency of care.

(4) The requirements of other provisions of law, including
Section 1367.01 governing utilization review, that may affect
timeliness of access.

(c) The department may adopt standards other than the time
elapsed between the time an enrollee seeks health care and obtains
care. If the department chooses a standard other than the time
elapsed between the time an enrollee first seeks health care and
obtains it, the department shall demonstrate why that standard is
more appropriate. In developing these standards, the department
shall consider the nature of the plan network.

(d) The department shall review and adopt standards, as needed,
concerning the availability of primary care physicians, specialty
physicians, hospital care, and other health care, so that consumers
have timely access to care. In so doing, the department shall
consider the nature of physician practices, including individual
and group practices as well as the nature of the plan network. The
department shall also consider various circumstances affecting the
delivery of care, including urgent care, care provided on the same
day, and requests for specific providers. If the department finds
that health care service plans and health care providers have
difficulty meeting these standards, the department may make
recommendations to the Assembly Committee on Health and the
Senate Committee on Insurance of the Legislature pursuant to
subdivision (i).

(e) In developing standards under subdivision (a), the department
shall consider requirements under federal law, requirements under
other state programs, standards adopted by other states, nationally
recognized accrediting organizations, and professional associations.
The department shall further consider the needs of rural areas,
specifically those in which health facilities are more than 30 miles
apart and any requirements imposed by the State Department of
Health Care Services on health care service plans that contract
with the State Department of Health Care Services to provide
Medi-Cal managed care.

(f) (1) Contracts between health care service plans and health
care providers shall ensure compliance with the standards
developed under this section. These contracts shall require
reporting by health care providers to health care service plans and
by health care service plans to the department to ensure compliance
with the standards.

(2) Health care service plans shall report annually to the
department on compliance with the standards in a manner specified
by the department. The reported information shall allow consumers
to compare the performance of plans and their contracting providers
in complying with the standards, as well as changes in the
compliance of plans with these standards.

(3) The department may develop standardized methodologies
for reporting that shall be used by health care service plans to
demonstrate compliance with this section and any regulations
adopted pursuant to it. The methodologies shall be sufficient to
determine compliance with the standards developed under this
section for different networks of providers if a health care service
plan uses a different network for Medi-Cal managed care products
than for other products or if a health care service plan uses a
different network for individual market products than for small
group market products. The development and adoption of these
methodologies shall not be subject to the Administrative Procedure
Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code) until January 1,
2020. The department shall consult with stakeholders in developing
standardized methodologies under this paragraph.

(g) (1) When evaluating compliance with the standards, the
department shall focus more upon patterns of noncompliance rather
than isolated episodes of noncompliance.

(2) The director may investigate and take enforcement action
against plans regarding noncompliance with the requirements of
this section. Where substantial harm to an enrollee has occurred
as a result of plan noncompliance, the director may, by order,
assess administrative penalties subject to appropriate notice of,
and the opportunity for, a hearing in accordance with Section 1397.
The plan may provide to the director, and the director may
consider, information regarding the plan’s overall compliance with
the requirements of this section. The administrative penalties shall
not be deemed an exclusive remedy available to the director. These
penalties shall be paid to the Managed Care Administrative Fines
and Penalties Fund and shall be used for the purposes specified in
Section 1341.45. The director shall periodically evaluate grievances
to determine if any audit, investigative, or enforcement actions
should be undertaken by the department.

(3) The director may, after appropriate notice and opportunity
for hearing in accordance with Section 1397, by order, assess
administrative penalties if the director determines that a health
care service plan has knowingly committed, or has performed with
a frequency that indicates a general business practice, either of the
following:

(A) Repeated failure to act promptly and reasonably to assure
timely access to care consistent with this chapter.

(B) Repeated failure to act promptly and reasonably to require
contracting providers to assure timely access that the plan is
required to perform under this chapter and that have been delegated
by the plan to the contracting provider when the obligation of the
plan to the enrollee or subscriber is reasonably clear.

(C) The administrative penalties available to the director
pursuant to this section are not exclusive, and may be sought and
employed in any combination with civil, criminal, and other
administrative remedies deemed warranted by the director to
enforce this chapter.

(4) The administrative penalties shall be paid to the Managed
Care Administrative Fines and Penalties Fund and shall be used
for the purposes specified in Section 1341.45.

(h) The department shall work with the patient advocate to
assure that the quality of care report card incorporates information
provided pursuant to subdivision (f) regarding the degree to which
health care service plans and health care providers comply with
the requirements for timely access to care.

(i) The department shall annually review information regarding
compliance with the standards developed under this section and
shall make recommendations for changes that further protect
enrollees. Commencing no later than December 1, 2015, and
annually thereafter, the department shall post its final findings
from the review on its Internet Web site.

(j) The department shall post on its Internet Web site any
waivers or alternative standards that the department approves under
this section on or after January 1, 2015.

(k) For purposes of this section, “specialty physician” includes
a physician who meets the criteria for an HIV specialist as
published by the American Academy of HIV Medicine or the HIV
Medicine Association, or who is contracted to provide outpatient
medical care under the federal Ryan White Comprehensive AIDS
Resources Emergency (CARE) Act of 1990 (Public Law 101-381).

SEC. 2.  

Section 1367.693 is added to the Health and Safety
Code, immediately following Section 1367.69, to read:

1367.693.  

(a) Every health care service plan contract that is
issued, amended, or renewed on or after January 1, 2017, that
provides hospital, medical, or surgical coverage shall include an
HIV specialist as an eligible primary care begin delete physician, provided he
or she end delete begin insert provider, if the provider requests primary care provider
status and end insert meets the health care service plan’s eligibility criteria
for all specialists seeking primary care begin delete physician end delete begin insert provider end insert status.

(b) For purposes of this section, “primary care begin delete physician” end delete
begin insert provider end insert begin insert ” end insert means a begin delete physician, end delete begin insert physician or a nonphysician medical
practitioner, end insert as begin insert each term is end insert defined in Section 14254 of the
Welfare and Institutions Code, who has the responsibility for
providing initial and primary care to patients, for maintaining the
continuity of patient care, and for initiating referral for specialist
care. This means providing care for the majority of health care
problems, including, but not limited to, preventive services, acute
and chronic conditions, and psychosocial issues.

(c) For purposes of this section, “HIV specialist” means a
physician or a nurse practitioner who meets the criteria for an HIV
specialist as published by the American Academy of HIV Medicine
or the HIV Medicine Association, or who is contracted to provide
outpatient medical care under the federal Ryan White
Comprehensive AIDS Resources Emergency (CARE) Act of 1990
(Public Law 101-381).

SEC. 3.  

Section 10123.833 is added to the Insurance Code, immediately following Section 10123.83, to read:

10123.833.  

(a) Every health insurance policy that is issued,
amended, or renewed on or after January 1, 2017, that provides
hospital, medical, or surgical coverage shall include an HIV
specialist as an eligible primary care begin delete physician, provided he or she end delete
begin insert provider, if the provider requests primary care provider status
and end insert meets the health insurer’s eligibility criteria for all specialists
seeking primary care begin delete physician end delete begin insert provider end insert status.

(b) For purposes of this section, “primary care begin delete physician” end delete
begin insert provider end insert begin insert ” end insert means a begin delete physician, end delete begin insert physician or a nonphysician medical
practitioner, end insert as begin insert each term is end insert defined in Section 14254 of the
Welfare and Institutions Code, who has the responsibility for
providing initial and primary care to patients, for maintaining the
continuity of patient care, and for initiating referral for specialist
care. This means providing care for the majority of health care
problems, including, but not limited to, preventive services, acute
and chronic conditions, and psychosocial issues.

(c) For purposes of this section, “HIV specialist” means a
physician or a nurse practitioner who meets the criteria for an HIV
specialist as published by the American Academy of HIV Medicine
or the HIV Medicine Association, or who is contracted to provide
outpatient medical care under the federal Ryan White
Comprehensive AIDS Resources Emergency (CARE) Act of 1990
(Public Law 101-381).

SEC. 4.  

Section 10133.5 of the Insurance Code is amended to
read:

10133.5.  

(a) The commissioner shall promulgate regulations
applicable to health insurers that contract with providers for
alternative rates pursuant to Section 10133 to ensure that insureds
have the opportunity to access needed health care services in a
timely manner.

(b) These regulations shall be designed to ensure accessibility
of provider services in a timely manner to individuals comprising
the insured or contracted group, pursuant to benefits covered under
the policy or contract. The regulations shall ensure:

(1) Adequacy of number and locations of institutional facilities
and professional providers, and consultants in relationship to the
size and location of the insured group and that the services offered
are available at reasonable times.

(2) Adequacy of number of professional providers, and license
classifications of such providers, in relationship to the projected
demands for services covered under the group policy or plan. The
department shall consider the nature of the specialty in determining
the adequacy of professional providers.

(3) The policy or contract is not inconsistent with standards of
good health care and clinically appropriate care.

(4) All contracts, including contracts with providers, and other
persons furnishing services or facilities, shall be fair and
reasonable.

(c) In developing standards under subdivision (a), the department
shall also consider requirements under federal law; requirements
under other state programs and law, including utilization review;
and standards adopted by other states, national accrediting
organizations, and professional associations. The department shall
further consider the accessability to provider services in rural areas.

(d) In designing the regulations, the commissioner shall consider
the regulations in Title 28 of the California Code of Regulations,
commencing with Section 1300.67.2, which are applicable to
Knox-Keene plans, and all other relevant guidelines in an effort
to accomplish maximum accessibility within a cost-efficient system
of indemnification. The department shall consult with the
Department of Managed Health Care concerning regulations
developed by that department pursuant to Section 1367.03 of the
Health and Safety Code and shall seek public input from a wide
range of interested parties.

(e) Health insurers that contract for alternative rates of payment
with providers shall report annually on complaints received by the
insurer regarding timely access to care. The department shall
review these complaints and any complaints received by the
department regarding timeliness of care and shall make public this
information.

(f) The department shall report to the Assembly Committee on
Health and the Senate Committee on Insurance of the Legislature
on March 1, 2003, and on March 1, 2004, regarding the progress
towards the implementation of this section.

(g) Every three years, the commissioner shall review the latest
version of the regulations adopted pursuant to subdivision (a) and
shall determine if the regulations should be updated to further the
intent of this section.

(h) For purposes of this section, “professional provider” includes
a physician who meets the criteria for an HIV specialist as
published by the American Academy of HIV Medicine or the HIV
Medicine Association, or who is contracted to provide outpatient
medical care under the federal Ryan White Comprehensive AIDS
Resources Emergency (CARE) Act of 1990 (Public Law 101-381).

SEC. 5.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.