BILL ANALYSIS �
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|Hearing Date:July 6, 2011 |Bill No:AB |
| |415 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: AB 415Author:Logue
As Amended:May 27, 2011 Fiscal: Yes
SUBJECT: Healing arts: telehealth.
SUMMARY: Enacts the Telehealth Advancement Act of 2011 which repeals
and recasts existing law provisions dealing with telemedicine and
replaces the term telemedicine with telehealth.
NOTE: This bill was heard in Senate Health Committee on June 29, 2011
and passed 8-0.
Existing law:
1) Establishes the Medical Board of California (MBC) to regulate the
practice of medicine under the Medical Practice Act.
2) Establishes the Telemedicine Development Act of 1996 for the
purpose of addressing significant barriers to access to health
services in medically underserved rural and urban areas. Defines
"telemedicine" as the practice of health care delivery, diagnosis,
consultation, treatment, transfer of medical data, and education
using interactive audio, video or data communications. Neither a
phone conversation nor an electronic mail message between a health
care practitioner and patient constitutes telemedicine. (Business
& Profession Code
� 2290.5)
3) Provides that for the purpose of practicing telemedicine, provides
that the term "health care practitioner" includes a physician and
surgeon, podiatrist, clinical psychologist, marriage and family
therapist, licensed clinical social worker, dentist, or
optometrist. (Id.)
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4) Requires, prior to the delivery of health care via telemedicine, a
health care practitioner who has ultimate authority over the care
or primary diagnosis of the patient to obtain verbal and written
informed consent from the patient or the patient's legal
representative. Specifies that the informed consent procedure must
include certain information to be given to the patient or the
patient's legal representative verbally or in writing. Specifies
that failure of a health care provider to comply with these
requirements constitutes unprofessional conduct. Provides for
exemptions to the application of telemedicine. (Id.)
5) States that no health care service plan contract that is issued,
amended, or renewed shall require face-to-face contact between a
health care provider and a patient for services appropriately
provided through telemedicine, as specified. Provides that this
requirement applies to health care service plan contracts with the
Medi-Cal managed care program only if certain requirements are met.
(Health & Safety Code � 1374.13)
6) Provides that no disability insurance contract that is issued,
amended, or renewed for hospital, medical or surgical coverage
shall require face-to-face contact between a health care provider
and a patient for services appropriately provided through
telemedicine, as specified. (Insurance Code � 10123.85)
7) Establishes the Medi-Cal program, administered by Department of
Health Care Services (DHCS), under which health care services are
provided to qualified low-income persons. (Welfare & Institutions
Code (WIC) � 14000 et.seq.)
8) Provides that face-to-face contact between a health care provider
and a patient shall not be required under the Medi-Cal program for
services appropriately provided through telemedicine, subject to
reimbursement policies developed by the Medi-Cal program, as
specified. (Id., WIC � 14132.72)
9) Requires the DHCS to report to the appropriate committees of the
Legislature by January 1, 2000, on the application of telemedicine
to provide specified services. (Id.)
10) Establishes the Confidentiality of Medical
Information Act, which among other provisions, prohibits licensed
or certified health care professionals, clinics and health
facilities, health plans and insurers, and contracting entities, as
defined, from disclosing or using a patient's medical information
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for any purpose not necessary to provide health care services to
the patient and related administrative functions, without first
obtaining authorization from the patient or the patient's
representative, as specified, with exceptions. (Civil Code � 56
et.seq.)
11) Establishes in federal law the Health Insurance
Portability and Accountability Act, which among other provisions,
prohibits a health plan, health care clearinghouse or a health care
provider, who transmits health information in electronic form, from
using or disclosing protected health information, for purposes
other than medical treatment or payment, or health care operations,
as defined, without written authorization of the patient, with
exceptions.
This bill:
1) Repeals and recasts existing law provisions relating to
telemedicine, updates and defines various terms related to
telehealth. Deletes the term "telemedicine" and replaces it with
"telehealth," which is defined as the mode of delivering health
care services and public health via information and communication
technologies to facilitate the diagnosis, consultation, treatment,
education, care management, and self-management of a patient's
health care while the patient is at the originating site and the
health care provider is at a distant site. States that telehealth
facilitates patient self-management and caregiver support for
patients and includes synchronous interactions and asynchronous
store and forward transfers.
2) Deletes existing requirement that prior to the delivery of
healthcare via telemedicine that verbal and written informed
consent must be obtained from the patient or the patient's
representative, and instead requires that a health care provider to
verbally inform the patient that telehealth may be used and obtain
verbal consent from the patient. Requires the verbal consent to be
documented in the patient's medical record. Requires that all laws
regarding the confidentiality of health care information and a
patient's rights to his or her medical information to apply to
telehealth.
3) Repeals and recasts existing law provisions requiring every health
care service plan or health insurer to adopt payment policies for
telemedicine. Requires health care service plans or health
insurers to:
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a) Adopt payment policies to compensate health care providers who
provide covered health care services through telehealth, as
specified;
b) Not to limit the type of setting where services are provided
for the patient or by the health care provider;
c) Not to interpret this bill to require the use of telehealth
when the health care provider has determined that it is not
appropriate.
4) Repeals and recasts existing law provisions relating to the
provision of telemedicine in the Medi-Cal program, and instead
provides:
a) That the DHCS shall not require a health care provider to
document a barrier to an in-person visit for Medi-Cal coverage of
services provided via telehealth;
b) For purposes of payment for covered treatment or services
through telehealth, the DHCS shall not limit the type of setting
where services are provided for the patient or by the health care
provider;
c) Not to interpret the provisions of this bill to authorize the
DHCS to require the use of telehealth when the health care
provider has determined that it is not appropriate.
d) That the DHCS is authorized to implement, interpret and make
specific the provisions of this bill by means of all-county
letters, provider bulletins, and similar instructions.
5) Finds and declares the importance of telehealth and the need to
assure payment for telehealth.
6) Makes other technical, non-substantive and clarifying changes.
FISCAL EFFECT: According to the Assembly Appropriations Committee: 1)
Unknown one-time workload, unlikely to exceed $100,000, to DHCS to
modify regulations, develop specific payment policies, and communicate
the new policies via provider bulletins; and, 2) Potential unknown
additional costs, or savings, for telehealth services in the Medi-Cal
Program. The cost impacts would depend on changes in payment policies
developed by DHCS and any resulting changes in provider billing
behavior. A significant increase in the use of telehealth could have
indirect fiscal impacts on Medi-Cal and health plans and insurers.
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However, these potential impacts are speculative and would be effects
of the broader adoption of telehealth, not specific impacts of this
bill.
COMMENTS:
1. Purpose. According to the California State Rural Health
Association , the Sponsor of this measure, this bill will "remove
barriers in current law to the use of telehealth in the delivery of
health care, while maintaining the original legislative intent of
California's Telemedicine Development Act (TDA) of 1996. This bill
replaces and updates outdated terminology of telemedicine term with
telehealth to reflect the current use of telehealth in California's
health care system providing a broader range of services than
contained in the outdated 1996 model statute. The updated statute
applies the definition of telehealth to all licensed health
professionals; streamlines the process and removes duplicative
procedures; and recognizes changes in technology & health care
advances. This bill will also eliminate an existing sunset date in
Medi-Cal on the provision of telehealth asynchronous store and
forward services for dermatology, ophthalmology and optometry,
since that is the current practice of health and no longer
considered experimental.
2. Background. SB 1665 (M. Thompson, Chapter 864, Statutes of 1996)
enacted the Telemedicine Development Act of 1996, which imposed
several requirements governing the delivery of health care services
through telemedicine. The 1996 Telemedicine Development Act (TDA)
declared that lack of primary care, specialty providers, and
transportation are significant barriers to access to health
services in medically underserved rural and urban areas, and parts
of California have difficulty attracting and retaining health
professionals, as well as supporting local health facilities to
provide a continuum of health care. It also declared telemedicine
is part of a multifaceted approach to address the problem of
provider distribution and the development of health systems in
medically underserved areas by improving communication capabilities
and providing convenient access to up-to-date information,
consultation, and other forms of support. The TDA also specified a
number of requirements that must be followed by health care
practitioners prior to the delivery of health care via
telemedicine. Specifically, a health care practitioner must obtain
the verbal and written consent of the patient prior to providing
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health care delivery services through telemedicine, and failure to
comply with constitutes unprofessional conduct.
The Medical Practice Act defines telemedicine as the practice of
health care delivery, diagnosis, consultation, treatment, transfer
of medical data, and education using interactive audio, video, or
data communications. According to the MBC's Internet Website,
telemedicine is seen as a tool in medical practice, not a separate
form of medicine. There are no legal prohibitions to using
technology in the practice of medicine, as long as the practice is
done by a California licensed physician. The MBC points out that
the standard of care is the same whether the patient is seen
in-person, through telemedicine or other methods of electronically
enabled health care. Physicians need not reside in California, as
long as they have a valid, current California license.
Additionally, physicians must provide an appropriate prior
examination to diagnose and/or treat a patient. This examination
need not be in-person, if the technology is sufficient to provide
the same information to the physician if the exam had to be
performed face-to-face.
AB 329 (Nakanishi, Chapter 386, Statutes of 2007) authorized the MBC
to establish a pilot program to expand the practice of
telemedicine, and authorized it to implement the program by
convening a working group. AB 329 specified that the purpose of
the pilot program would be to develop methods, using a telemedicine
model, of delivering health care to those with chronic diseases and
delivering other health information. Additionally, the MBC was
required to submit a report to the Legislature about its findings
within one calendar year of the commencement of the pilot program.
In July 2010, the MBC submitted this report, but indicated that in
developing the parameters of the pilot, the MBC realized that a
one-year pilot was not feasible, valuable results would not be
recognized, nor could feasible recommendations be made in such a
short time frame.
The report covers the period July 1, 2009 to April 30, 2010, and MBC
contracted with the University of California, Davis to develop a
telemedicine model for the provision of modern diabetes
self-management education and training classes for patients with
diabetes living in a 33-county area of rural, underserved
communities in northern and central California. This telemedicine
model was referred to as the telemedicine Diabetes Self-Management
Education Curricula, which was piloted with a group of 9 patients
with diabetes at UC Davis Medical Center. The report outlined the
accomplishments of the pilot project, including the hiring of a
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health educator staff, completion of curriculum development, and
the continuing medical education portion of the project has been
submitted and approved. There are additional goals that need to be
met but the report indicated that two subsequent annual reports
that are forthcoming will better evaluate the effectiveness of the
pilot project.
3. Related Legislation.
a) AB 386 (Galgiani) of 2011, requires the California Department
of Corrections and Rehabilitation to have an operational
telemedicine services program in all state prisons, as specified,
by January 1, 2016. AB 386 was held on the Assembly
Appropriations Committee's Suspense File.
b) SB 946 (Committee on Health) incorporates some of the same
terminology changes proposed in this bill. SB 946 is pending in
Assembly Health Committee.
c) AB 175 (Galgiani, Chapter 419, Statutes of 2010) for the
purposes of Medi-Cal reimbursement, expanded, until January 1,
2013, the definition of "teleophthalmology and teledermatology by
store and forward" to include services of an optometrist who is
trained to diagnose and treat eye diseases.
d) AB 2120 (Galgiani, Chapter 260, Statutes of 2008) extended the
Medi-Cal telemedicine reimbursement authorization until January
1, 2013.
e) AB 329 (Nakanishi, Chapter 386, Statutes of 2007) authorized
the MBC to establish a pilot program to expand the practice of
telemedicine, as specified.
f) AB 1224 (Hern�ndez, Chapter 507, Statutes of 2007) included
optometrists to the list of health care providers covered under
laws governing telemedicine services.
g) AB 2661 (Dymally) of 2007, would have added telephone
communication to the definition of telemedicine, required the
practitioner practicing telemedicine by telephone to use an
electronic medical record (EMR) and provided that a practitioner
may be designated by the patient. AB 2661 failed passage in the
Assembly Health Committee.
h) AB 354 (Cogdill, Chapter 449, Statutes of 2005) expanded
telemedicine provisions by providing that, from July 1, 2006
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through December 31, 2008, face-to-face contact between a health
care provider and a patient shall not be required for the
Medi-Cal program for "store and forward" teleophthalmology and
teledermatology services.
i) SB 1341 (Kuehl) of 2004 would have expanded the definition of
telemedicine to include the use of store-and-forward technology
for teledermatology and teleophthalmology services, and to allow
Medi-Cal reimbursement for these two types of services provided
by health care practitioners via telemedicine. SB 1341 was
vetoed by former Governor Schwarzenegger.
j) AB 116 (Nakano, Chapter 20, Statutes of 2003) clarified that
the TDA applies to marriage and family therapists (MFTs) so that
MFTs may deliver services using interactive audio, video, or data
communications without direct contact with the patient.
aa) SB 1665 (Thompson, Chapter 864, Statutes of 1996)
established the TDA, to set standards for the use of telemedicine
by health care practitioners and insurers.
4. Arguments in Support. Supporters, including the California
Healthcare Institute and the Medical Board of California state that
this bill would remove barriers in current law and update the
current practice of telehealth in the delivery of health care. The
Children's Partnership (TCP) states that low-income children living
in medically underserved areas face geographic and economic
barriers to accessing health care. TCP states that telehealth
helps overcome barriers such as health care provider shortages,
transportation costs, and lost time from work and school by using
technology to bring the care to where the children are located.
The California Hospital Association further indicates that the use
of telehealth technologies increase access to health care in rural
communities by allowing clinical services such as diagnosis,
consultation, treatment and care management to be more easily
obtained in remote areas.
According to the University of California (UC), there are three major
initiatives underway to expand the use of telehealth technologies
and expertise throughout the state. The first is the California
Telehealth Network (CTN), a recent statewide broadband initiative
to provide managed broadband access to hundreds of primarily rural
health care facilities throughout California. The CTN expects to
link more than 800 qualified sites, including the five UC academic
health systems, Stanford University, University of Southern
California, and Loma Linda University in a peer-to-peer network
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which will be one of the largest in the nation. A second enables
the expansion of existing telemedicine programs at UC medical
school campuses to provide facilities and state-of-the art
equipment to expand use of telemedicine across the state. Lastly,
the Specialty Care Safety Net Initiative is a collaborative effort
between UC medical school specialty departments and safety net
clinics in California. The initiative seeks to identify barriers
to adoption and sustainability of telehealth programs in high-need
specialties such as dermatology, endocrinology, hepatology,
neurology, orthopedics and psychiatry.
5. Amendments Adopted in Senate Health Committee. The Author agreed
to several amendments in Senate Health Committee which will be
adopted in this Committee. These amendments update terms relating
to telehealth, clarify that this bill does not conflict with or
supersede existing state laws and regulations related to
reimbursement of services, and makes other, technical, and
clarifying changes. (See attached mock-up of Health Committee
Amendments.)
SUPPORT AND OPPOSITION:
Support:
California State Rural Health Association (sponsor)
AgeTech California
Association of California Healthcare Districts
California Association of Physician Groups
California Center for Rural Health Policy
California Healthcare Institute
California Hospital Association
California Medical Association
Children's Partnership
Del Norte Clinics, Inc
Kaiser Permanente
Kings View Corporation
Latino Coalition for a Healthy California
Medical Board of California
National Multiple Sclerosis Society - CA Action Network
Occupational Therapy Association of California
Peach Tree Healthcare
Regional Council of Rural Counties
Rural Health Sciences Institute, College of the Siskiyous
University of California
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Opposition: None on file as of June 28, 2011
Consultant:Rosielyn Pulmano