Amended  IN  Senate  May 18, 2023
Amended  IN  Senate  April 17, 2023
Amended  IN  Senate  March 29, 2023
Amended  IN  Senate  March 20, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill
No. 238

Introduced by Senator Wiener
(Coauthor: Senator (Coauthors: Senators Gonzalez and Newman)
(Coauthor: Assembly Member Garcia)

January 24, 2023

An act to add Section 1374.37 to the Health and Safety Code, and to add Section 10169.6 to the Insurance Code, relating to health care coverage.


LEGISLATIVE COUNSEL'S DIGEST


SB 238, as amended, Wiener. Health care coverage: independent medical review.
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, and makes a willful violation of the act a crime. Existing law provides for the regulation of disability insurers by the Department of Insurance. Existing law establishes the Independent Medical Review System within each department, under which an enrollee or insured may seek review if a health care service has been denied, modified, or delayed by a health care service plan or disability insurer and the enrollee or insured has previously filed a grievance that remains unresolved after 30 days.
This bill would require a health care service plan or a disability insurer that modifies, delays, or denies a health care service, based in whole or in part on medical necessity, to automatically submit within 24 hours a decision regarding a disputed health care service to the Independent Medical Review System, as well as the information that informed its decision, without requiring an enrollee or insured to submit a grievance, if the decision is to deny, modify, or delay specified services relating to mental health or substance use disorder conditions for an enrollee or insured up to 26 years of age. The bill would require a health care service plan or disability insurer, within 24 hours after submitting its decision to the Independent Medical Review System to provide notice to the appropriate department, the enrollee or insured or their representative, if any, and the enrollee’s or insured’s provider. The bill would require the notice to include notification to the enrollee or insured that they or their representative may cancel the independent medical review within 5 days, at any time before a determination, as specified.
The bill would apply specified existing provisions relating to mental health and substance use disorders for purposes of its provisions, and would be subject to relevant provisions relating to the Independent Medical Review System that do not otherwise conflict with the express requirements of the bill. With respect to health care service plans, the bill would specify that its provisions do not apply to Medi-Cal managed care plan contracts. The bill would authorize the Insurance Commissioner to promulgate regulations subject to the Administrative Procedure Act to implement and enforce the bill.
Because a willful violation of this provision 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   Local Program: YES  

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


SECTION 1.

 The Legislature finds and declares all of the following:
(a) Disputed health care service decisions under commercial health care coverage are already subject to review like the state’s Independent Medical Review System, but appeals must be initiated by enrollees and insureds.
(b) Mental health resources in California are disproportionately hard to access for low-income and minority children, and the online form to file an independent medical review is in English and Spanish only.
(c) The Legislature recently approved Chapter 151 of the Statutes of 2020, a mental health parity law that requires commercial health care service plan contracts and disability insurance policies to provide medically necessary mental health treatment.
(d) In California, 13 percent of children 3 to 17 years of age, inclusive, reported having at least one mental, emotional, developmental, or behavioral health problem, and 8 percent of children have a serious emotional disturbance that limits participation in daily activity.
(e) In 2021, mental health disorder diagnosis cases made up 48 percent of all total youth independent medical reviews, up from 36 percent in 2017.
(f) Since 2017, the percentage of health care service plan and disability insurer decisions about youth mental health disorders that were overturned by the Independent Medical Review System has more than doubled to 79 percent.
(g) Like older adults, children and youth represent a vulnerable population. However, children and youth covered by commercial health care coverage do not have the protections afforded by Medicare procedures. If a Medicare Advantage (Part C) health plan upholds its initial adverse organization determination to deny a drug or service, the plan must automatically submit the case file and its decision for review by the Part C Independent Review Entity.

SEC. 2.

 Section 1374.37 is added to the Health and Safety Code, to read:

1374.37.
 (a) (1) A health care service plan that modifies, delays, or denies a health care service, based in whole or in part on medical necessity consistent with this chapter, including, but not limited to, Sections 1363.5 and 1367.01, 1363.5, 1367.01, 1374.72, and 1374.721, shall automatically submit within 24 hours a decision regarding a disputed health care service to the Independent Medical Review System, System and all information that informed the health care service plan’s conclusion, without requiring an enrollee to submit a grievance, if the decision is to deny, modify, or delay either of the following with respect to an enrollee up to 26 years of age:
(A) A mental health care or substance use disorder service based on consideration of medical necessity.
(B) The use of experimental or investigational therapies, drugs, devices, procedures, or other therapies, if the enrollee has a seriously debilitating or life-threatening mental health or substance use disorder condition, as defined in Section 1370.4. The independent medical review for experimental or investigational therapies, drugs, devices, procedures, or other therapies shall be consistent with Section 1370.4.
(2) An independent medical review required under this subdivision is subject to any relevant provisions of this article that do not otherwise conflict with the express requirements of this section.
(b) (1) Within 24 hours after submitting its decision to the Independent Medical Review System pursuant to subdivision (a), the health care service plan shall provide notice to the department, the enrollee, the enrollee’s representative, if any, and the enrollee’s provider. The notice shall include notification both of the following:
(A) Notification to the enrollee that the enrollee or their representative may cancel the independent medical review within five days of receipt of the notice at any time before the rendering of a determination and may provide additional information to the department and plan. or documentation as described in paragraph (3) of subdivision (m) of Section 1374.30.
(B) Instructions for canceling the independent medical review and submitting additional information or documentation.
(2) Concurrent with the notice specified in paragraph (1), the health care service shall provide the enrollee and the enrollee’s provider with copies of all documents described in subdivision (n) of Section 1374.30.
(c) Sections 1374.72, 1374.721, 1374.724, and 1374.73 apply for purposes of this section.
(d) If an enrollee or their representative cancels the independent medical review consistent with this section, they may seek an independent medical review consistent with Section 1370.4 or this article.
(e) This section does not apply to Medi-Cal managed care plan contracts entered into with the State Department of Health Care Services pursuant to Chapter 7 (commencing with Section 14000) or Chapter 8 (commencing with Section 14200) of Part 3 of Division 9 of the Welfare and Institutions Code.

SEC. 3.

 Section 10169.6 is added to the Insurance Code, to read:

10169.6.
 (a) (1) A disability insurer that modifies, delays, or denies a health care service, based in whole or in part on medical necessity consistent with this chapter, including, but not limited to, Section Sections 10123.135, 10144.5, and 10144.52, shall automatically submit within 24 hours a decision regarding a disputed health care service to the Independent Medical Review System, System and all information that informed the disability insurer’s conclusion, without requiring an insured to submit a grievance, if the decision is to deny, modify, or delay either of the following with respect to an insured up to 26 years of age:
(A) A mental health care or substance use disorder service based on consideration of medical necessity.
(B) The use of experimental or investigational therapies, drugs, devices, procedures, or other therapies, if the insured has a seriously debilitating or life-threatening mental health or substance use disorder condition, as defined in Section 10145.3. The independent medical review for experimental or investigational therapies, drugs, devices, procedures, or other therapies shall be consistent with Section 10145.3 10145.3.
(2) An independent medical review required under this subdivision is subject to any relevant provisions of this article that do not otherwise conflict with the express requirements of this section.
(b) (1) Within 24 hours after submitting its decision to the Independent Medical Review System pursuant to subdivision (a), the disability insurer shall provide notice to the department, the insured, the insured’s representative, if any, and the insured’s provider. The notice shall include notification both of the following:
(A) Notification to the insured that the insured or their representative may cancel the independent medical review within five days of receipt of the notice at any time before the rendering of a determination and may provide additional information to the department and insurer. or documentation as described in paragraph (3) of subdivision (m) of Section 10169.
(B) Instructions for canceling the independent medical review and submitting additional information or documentation.
(2) Concurrent with the notice specified in paragraph (1), the disability insurer shall provide the insured and the insured’s provider with copies of all documents described in subdivision (n) of Section 10169.
(c) Sections 10144.5, 10144.51, 10144.52 10144.52, and 10144.57 apply for purposes of this section.
(d) If an insured or their representative cancels the independent medical review consistent with this section, they may seek an independent medical review consistent with Section 10145.3 or this article.
(e) The commissioner may promulgate regulations 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) to implement and enforce this section.

SEC. 4.

 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.