BILL NUMBER: SB 1034AMENDED BILL TEXT AMENDED IN ASSEMBLY JUNE 30, 2016 AMENDED IN SENATE MAY 31, 2016 AMENDED IN SENATE APRIL 26, 2016 INTRODUCED BY Senator Mitchell FEBRUARY 12, 2016 An act to amend Section 1374.73 of the Health and Safety Code,andto amend Sections 10144.51 and 10144.52 of the Insurance Code, and to amend Section 14132.56 of the Welfare and Institutions Code, relating to health care coverage. LEGISLATIVE COUNSEL'S DIGEST SB 1034, as amended, Mitchell. Health care coverage: autism. Existing law provides for the licensure and regulation of health care service plans by the Department of Managed Health Care. A violation of those provisions is a crime. Existing law provides for the licensure and regulation of health insurers by the Department of Insurance. Existing law requires every health care service plan contract and health insurance policy to provide coverage for behavioral health treatment for pervasive developmental disorder or autism until January 1, 2017, and defines "behavioral health treatment" to mean specified services provided by, among others, a qualified autism service professional supervised and employed by a qualified autism service provider. Existing law defines a "qualified autism service professional" to mean a person who, among other requirements, is a behavior 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 pursuant to specified regulations adopted under the Lanterman Developmental Disabilities Services Act. Existing law requires a treatment plan to be reviewed no less than once every 6 months. Under existing law, the above provisions do not apply to certain types of health care coverage, including health care service plans and health insurance policies in the Medi-Cal program. This bill would, among other things, modify requirements to be a qualified autism service professional to include providing behavioral health treatment, such as clinical management and case supervision. The bill would require that a treatment plan be reviewed no more than once every 6 months, unless a shorter period is recommended by the qualified autism service provider. The bill would extend the operation of these provisionsindefinitely.to January 1, 2022. The bill would require behavioral health treatment for purposes of the Medi-Cal program to expressly comply with the approved Medicaid state plan. The bill also would make clarifying and conforming changes. By extending the operation of these provisions, the violation of which 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 1374.73 of the Health and Safety Code is amended to read: 1374.73. (a) (1) Every health care service plan contract that provides hospital, medical, or surgical coverage shall also provide coverage for behavioral health treatment for pervasive developmental disorder or autism no later than July 1, 2012. The coverage shall be provided in the same manner and shall be subject to the same requirements as provided in Section 1374.72. (2) Notwithstanding paragraph (1), as of the date that proposed final rulemaking for essential health benefits is issued, this section does not require any benefits to be provided that exceed the essential health benefits that all health plans will be required by federal regulations to provide under Section 1302(b) of the federal Patient Protection and Affordable Care Act (Public Law 111-148), as amended by the federal Health Care and Education Reconciliation Act of 2010 (Public Law 111-152). (3) This section shall not affect services for which an individual is eligible pursuant to Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code or Title 14 (commencing with Section 95000) of the Government Code. (4) This section shall not affect or reduce any obligation to provide services under an individualized education program, as defined in Section 56032 of the Education Code, or an individual service plan, as described in Section 5600.4 of the Welfare and Institutions Code, or under the federal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.) and its implementing regulations. (b) Every health care service plan subject to this section shall maintain an adequate network that includes qualified autism service providers who supervise qualified autism service professionals or paraprofessionals who provide and administer behavioral health treatment. Nothing shall prevent a health care service plan from selectively contracting with providers within these requirements. (c) For the purposes of this section, the following definitions shall apply: (1) "Behavioral health treatment" means professional services and treatment programs, including applied behavior analysis and other evidence-based behavior intervention programs, that develop, keep, or restore, to the maximum extent practicable, the functioning of an individual with pervasive developmental disorder or autism and that meet all of the following criteria: (A) The treatment is prescribed by a physician and surgeon licensed pursuant to Chapter 5 (commencing with Section 2000) of, or is developed by a psychologist licensed pursuant to Chapter 6.6 (commencing with Section 2900) of, Division 2 of the Business and Professions Code. (B) The treatment is provided under a treatment plan prescribed by a qualified autism service provider and is administered by one of the following: (i) A qualified autism service provider. (ii) A qualified autism service professional supervised by the qualified autism service provider. (iii) A qualified autism service paraprofessional supervised by a qualified autism service provider. (C) The treatment plan has measurable goals over a specific timeline that is developed and approved by the qualified autism service provider for the specific patient being treated. The treatment plan shall be reviewed no more than once every six months by the qualified autism service provider, unless a shorter period is recommended by the qualified autism service provider, and modified whenever appropriate, and shall be consistent with Section 4686.2 of the Welfare and Institutions Code pursuant to which the qualified autism service provider does all of the following: (i) Describes the patient's behavioral health impairments or developmental challenges that are to be treated. (ii) Designs an intervention plan that includes the service type, number of hours, and parent or caregiver participation recommended by the qualified autism service provider to achieve the plan's goal and objectives, and the frequency at which the patient's progress is evaluated and reported. Lack of parent or caregiver participation shall not be used to deny or reduce medically necessary behavioral health treatment. (iii) Provides intervention plans that utilize evidence-based practices, with demonstrated clinical efficacy in treating pervasive developmental disorder or autism. (iv) Discontinues intensive behavioral intervention services when the treatment goals and objectives are achieved or no longer appropriate, and continued therapy is not necessary to maintain function or prevent deterioration. (D) (i) The treatment plan is not used for purposes of providing or for the reimbursement of respite, day care, or academic services and is not used to reimburse a parent for participating in the treatment program. (ii) The setting, location, or time of treatment shall not be used as a reason to deny medically necessary behavioral health treatment. (iii) The treatment plan shall be made available to the health care service plan upon request. (2) "Pervasive developmental disorder or autism" shall have the same meaning and interpretation as used in Section 1374.72. (3) "Qualified autism service provider" means 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 pervasive developmental disorder or autism, provided the services are within the experience and competence of the person, entity, or group that is nationally certified. (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 pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, who designs, supervises, or provides treatment for pervasive developmental disorder or autism, provided the services are within the experience and competence of the licensee. (4) "Qualified autism service professional" means an individual who meets all of the following criteria: (A) Provides behavioral health treatment, including clinical management and case supervision. (B) Is supervised by a qualified autism service provider. (C) Provides treatment pursuant to a treatment plan developed and approved by the qualified autism service provider. (D) Is a behavioral service provider who meets the education and experience qualifications defined in Section 54342 of Title 17 of the California Code of Regulations for an Associate Behavior Analyst, Behavior Analyst, Behavior Management Assistant, Behavior Management Consultant, or Behavior Management Program. (E) Has training and experience in providing services for pervasive developmental disorder or autism pursuant to Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code or Title 14 (commencing with Section 95000) of the Government Code. (5) "Qualified autism service paraprofessional" means an unlicensed and uncertified individual who meets all of the following criteria: (A) Is supervised by a qualified autism service provider. (B) Provides treatment and implements services pursuant to a treatment plan developed and approved by the qualified autism service provider or qualified autism service professional. (C) Meets the education and training qualifications defined in the regulations adopted pursuant to Section 4686.3 of the Welfare and Institutions Code. (D) Has adequate education, training, and experience, as certified by a qualified autism service provider. (d) This section shall not apply to the following: (1) A specialized health care service plan that does not deliver mental health or behavioral health services to enrollees. (2) A health care service plan contract in the Medi-Cal program (Chapter 7 (commencing with Section 14000) of Part 3 of Division 9 of the Welfare and Institutions Code). The provision of behavioral health treatment in the Medi-Cal program, including any associated obligation of a health care service plan in the Medi-Cal program, is governed by Section 14132.56 of the Welfare and Institutions Code, the approved Medi-Cal state plan and waivers, and applic able federal Medicaid law. (e) This section does not limit the obligation to provide services pursuant to Section 1374.72. (f) As provided in Section 1374.72 and in paragraph (1) of subdivision (a), in the provision of benefits required by this section, a health care service plan may utilize case management, network providers, utilization review techniques, prior authorization, copayments, or other cost sharing. (g) This section shall not be construed to require coverage for services that are included in a patient's individualized education program. (h) This section shall remain in effect only until January 1, 2022, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2022, deletes or extends that date. SEC. 2. Section 10144.51 of the Insurance Code is amended to read: 10144.51. (a) (1) Every health insurance policy shall also provide coverage for behavioral health treatment for pervasive developmental disorder or autism no later than July 1, 2012. The coverage shall be provided in the same manner and shall be subject to the same requirements as provided in Section 10144.5. (2) Notwithstanding paragraph (1), as of the date that proposed final rulemaking for essential health benefits is issued, this section does not require any benefits to be provided that exceed the essential health benefits that all health insurers will be required by federal regulations to provide under Section 1302(b) of the federal Patient Protection and Affordable Care Act (Public Law 111-148), as amended by the federal Health Care and Education Reconciliation Act of 2010 (Public Law 111-152). (3) This section shall not affect services for which an individual is eligible pursuant to Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code or Title 14 (commencing with Section 95000) of the Government Code. (4) This section shall not affect or reduce any obligation to provide services under an individualized education program, as defined in Section 56032 of the Education Code, or an individual service plan, as described in Section 5600.4 of the Welfare and Institutions Code, or under the federal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.) and its implementing regulations. (b) Pursuant to Article 6 (commencing with Section 2240) of Title 10 of the California Code of Regulations, every health insurer subject to this section shall maintain an adequate network that includes qualified autism service providers who supervise qualified autism service professionals or paraprofessionals who provide and administer behavioral health treatment. Nothing shall prevent a health insurer from selectively contracting with providers within these requirements. (c) For the purposes of this section, the following definitions shall apply: (1) "Behavioral health treatment" means professional services and treatment programs, including applied behavior analysis and other evidence-based behavior intervention programs, that develop, keep, or restore, to the maximum extent practicable, the functioning of an individual with pervasive developmental disorder or autism, and that meet all of the following criteria: (A) The treatment is prescribed by a physician and surgeon licensed pursuant to Chapter 5 (commencing with Section 2000) of, or is developed by a psychologist licensed pursuant to Chapter 6.6 (commencing with Section 2900) of, Division 2 of the Business and Professions Code. (B) The treatment is provided under a treatment plan prescribed by a qualified autism service provider and is administered by one of the following: (i) A qualified autism service provider. (ii) A qualified autism service professional supervised by the qualified autism service provider. (iii) A qualified autism service paraprofessional supervised by a qualified autism service provider. (C) The treatment plan has measurable goals over a specific timeline that is developed and approved by the qualified autism service provider for the specific patient being treated. The treatment plan shall be reviewed no more than once every six months by the qualified autism service provider, unless a shorter period is recommended by the qualified autism service provider, and modified whenever appropriate, and shall be consistent with Section 4686.2 of the Welfare and Institutions Code pursuant to which the qualified autism service provider does all of the following: (i) Describes the patient's behavioral health impairments or developmental challenges that are to be treated. (ii) Designs an intervention plan that includes the service type, number of hours, and parent or caregiver participation recommended by a qualified autism service provider to achieve the plan's goal and objectives, and the frequency at which the patient's progress is evaluated and reported. Lack of parent or caregiver participation shall not be used to deny or reduce medically necessary behavioral health treatment. (iii) Provides intervention plans that utilize evidence-based practices, with demonstrated clinical efficacy in treating pervasive developmental disorder or autism. (iv) Discontinues intensive behavioral intervention services when the treatment goals and objectives are achieved or no longer appropriate, and continued therapy is not necessary to maintain function or prevent deterioration. (D) (i) The treatment plan is not used for purposes of providing or for the reimbursement of respite, day care, or academic services and is not used to reimburse a parent for participating in the treatment program. (ii) The setting, location, or time of treatment shall not be used as a reason to deny medically necessary behavioral health treatment. (iii) The treatment plan shall be made available to the insurer upon request. (2) "Pervasive developmental disorder or autism" shall have the same meaning and interpretation as used in Section 10144.5. (3) "Qualified autism service provider" means 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 pervasive developmental disorder or autism, provided the services are within the experience and competence of the person, entity, or group that is nationally certified. (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 pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, who designs, supervises, or provides treatment for pervasive developmental disorder or autism, provided the services are within the experience and competence of the licensee. (4) "Qualified autism service professional" means an individual who meets all of the following criteria: (A) Provides behavioral health treatment, including clinical management and case supervision. (B) Is employed and supervised by a qualified autism service provider. (C) Provides treatment pursuant to a treatment plan developed and approved by the qualified autism service provider. (D) Is a behavioral service provider who meets the education and experience qualifications defined in Section 54342 of Title 17 of the California Code of Regulations for an Associate Behavior Analyst, Behavior Analyst, Behavior Management Assistant, Behavior Management Consultant, or Behavior Management Program. (E) Has training and experience in providing services for pervasive developmental disorder or autism pursuant to Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code or Title 14 (commencing with Section 95000) of the Government Code. (5) "Qualified autism service paraprofessional" means an unlicensed and uncertified individual who meets all of the following criteria: (A) Is supervised by a qualified autism service provider. (B) Provides treatment and implements services pursuant to a treatment plan developed and approved by the qualified autism service provider or qualified autism service professional. (C) Meets the education and training qualifications defined in the regulations adopted pursuant to Section 4686.3 of the Welfare and Institutions Code. (D) Has adequate education, training, and experience, as certified by a qualified autism service provider. (d) This section shall not apply to the following: (1) A specialized health insurance policy that does not cover mental health or behavioral health services or an accident only, specified disease, hospital indemnity, or Medicare supplement policy. (2) A health insurance policy in the Medi-Cal program (Chapter 7 (commencing with Section 14000) of Part 3 of Division 9 of the Welfare and Institutions Code). The provision of behavioral health treatment in the Medi-Cal program, including any associated obligation of a health insurance policy in the Medi-Cal program, is governed by Section 14132.56 of the Welfare and Institutions Code, the approved Medi-Cal state plan and waivers, and applicable federal Medicaid law. (e) As provided in Section 10144.5 and in paragraph (1) of subdivision (a), in the provision of benefits required by this section, a health insurer may utilize case management, network providers, utilization review techniques, prior authorization, copayments, or other cost sharing. (f) This section shall not be construed to require coverage for services that are included in a patient's individualized education program. (g) This section shall remain in effect only until January 1, 2022, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2022, deletes or extends that date. SEC. 3. Section 10144.52 of the Insurance Code is amended to read: 10144.52.For(a) For purposes of this part, the terms "provider," "professional provider," "network provider," "mental health provider," and "mental health professional" shall include the term "qualified autism service provider," as defined in subdivision (c) of Section 10144.51. (b) This section shall remain in effect only until January 1, 2022, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2022, deletes or extends that date. SEC. 4. Section 14132.56 of the Welfare and Institutions Code is amended to read: 14132.56. (a) (1) Only to the extent required by the federal government and effective no sooner than required by the federal government, behavioral health treatment(BHT), as defined by Section 1374.73 of the Health and Safety Code,(BHT) shall be a covered Medi-Cal service for individuals under 21 years of age. (2) It is the intent of the Legislature that, to the extent the federal government requires BHT to be a covered Medi-Cal service, the department shall seek statutory authority to implement this new benefit in Medi-Cal. (3) For purposes of this section, "behavioral health treatment" or "BHT" means 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 pervasive developmental disorder or autism, and are administered as described in the approved state plan. (b) The department shall implement, or continue to implement, this section only after all of the following occurs or has occurred: (1) The department receives all necessary federal approvals to obtain federal funds for the service. (2) The department seeks an appropriation that would provide the necessary state funding estimated to be required for the applicable fiscal year. (3) The department consults with stakeholders. (c) The department shall develop and define eligibility criteria, provider participation criteria, utilization controls, and delivery system structure for services under this section, subject to limitations allowable under federal law, in consultation with stakeholders. (d) Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the department, without taking any further regulatory action, shall implement, interpret, or make specific this section by means of all-county letters, plan letters, plan or provider bulletins, or similar instructions until regulations are adopted. The department shall adopt regulations by July 1, 2017, in accordance with the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. Notwithstanding Section 10231.5 of the Government Code, beginning six months after the effective date of this section, the department shall provide semiannual status reports to the Legislature, in compliance with Section 9795 of the Government Code, until regulations have been adopted. (e) For the purposes of implementing this section, the department may enter into exclusive or nonexclusive contracts on a bid or negotiated basis, including contracts for the purpose of obtaining subject matter expertise or other technical assistance. Contracts may be statewide or on a more limited geographic basis. Contracts entered into or amended under this subdivision shall be exempt from Part 2 (commencing with Section 10100) of Division 2 of the Public Contract Code and Chapter 6 (commencing with Section 14825) of Part 5.5 of Division 3 of the Government Code, and shall be exempt from the review or approval of any division of the Department of General Services. (f) The department may seek approval of any necessary state plan amendments or waivers to implement this section. The department shall make any state plan amendments or waiver requests public at least 30 days prior to submitting to the federal Centers for Medicare and Medicaid Services, and the department shall work with stakeholders to address the public comments in the state plan amendment or waiver request. (g) This section shall be implemented only to the extent that federal financial participation is available and any necessary federal approvals have been obtained.SEC. 4.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.