Amended  IN  Assembly  May 24, 2024
Amended  IN  Senate  January 11, 2024
Amended  IN  Senate  January 03, 2024
Amended  IN  Senate  September 13, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill
No. 294

Introduced by Senator Wiener
(Coauthors: Senators Becker and Rubio)
(Coauthors: Assembly Members Garcia, Pellerin, and Schiavo)

February 02, 2023

An act to add Sections 1368.012 and 1374.37 to the Health and Safety Code, and to add Sections 10169.4 and 10169.6 to the Insurance Code, relating to health care coverage.


LEGISLATIVE COUNSEL'S DIGEST


SB 294, 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, commencing July 1, 2025, January 1, 2026, would require a health care service plan or a disability insurer that upholds its decision to modify, delay, or deny a health care service in response to a grievance or has a grievance that is otherwise pending or unresolved upon expiration of the relevant timeframe 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, 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 at any time before a determination, as specified.
This bill, commencing July 1, 2025, January 1, 2026, would require a health care service plan or disability insurer that provides coverage for mental health or substance use disorders to treat a modification, delay, or denial issued in response to an authorization request for coverage of treatment for a mental health or substance use disorder for an insured up to 26 years of age as if the modification, delay, or denial is also a grievance submitted by the enrollee or insured. The bill would require a plan or insurer to provide a written acknowledgment of a grievance that is automatically generated and would specify the circumstances under which that grievance is required to be submitted automatically to independent medical review.
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 Director of Managed Health Care and the Insurance Commissioner to promulgate regulations subject to the Administrative Procedure Act to implement and enforce the bill, and to issue interim guidance, as specified.
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 1368.012 is added to the Health and Safety Code, to read:

1368.012.
 (a) Commencing July 1, 2025, January 1, 2026, a health care service plan that provides coverage for mental health or substance use disorders pursuant to Section 1374.72 shall treat a modification, delay, or denial issued in response to an authorization request for coverage of treatment for a mental health or substance use disorder for an enrollee up to 26 years of age as if the modification, delay, or denial is also a grievance submitted by the enrollee in accordance with Sections 1368, 1368.01, and 1368.015.
(b) (1) A grievance automatically generated pursuant to subdivision (a) shall be treated by the plan and the department in the same manner as a grievance seeking to appeal the decision of the health care service plan to modify, delay, or deny the requested treatment for the enrollee, and shall be considered to have been submitted by the enrollee or the enrollee’s representative to the plan on the same date as the decision to modify, delay, or deny the requested treatment is issued by the plan. The plan shall not require the enrollee or the enrollee’s representative to take any additional action to initiate or continue the grievance processing procedure.
(2) The plan shall provide a written acknowledgment of the grievance generated pursuant to subdivision (a) as required pursuant to paragraph (4) of subdivision (a) of Section 1368 concurrent with the notification to the enrollee of the decision to modify, delay, or deny the requested treatment. The acknowledgment shall include an explanation of the grievance process and relevant timeframes for completion, criteria under subdivision (c) of Section 1374.33 for treatment of a grievance as an expedited case, including whether the present grievance is to be processed on an expedited basis and automatically submitted to the independent medical review system under Section 1374.37, contact information for the plan, including a telephone number through which the enrollee may receive a status update on the grievance or withdraw the automatically generated grievance, and contact information for the department.
(c) The acknowledgment described in subdivision (b) shall include a statement that the enrollee may choose to withdraw the automatically generated grievance. A withdrawal by the enrollee or their representative of a grievance automatically generated pursuant to this section before the health care service plan’s determination on the grievance shall not, by itself, disqualify the enrollee or their representative from later submitting a grievance related to the same underlying modification, delay, or denial of the requested mental health or substance use disorder treatment.
(d) Grievances automatically generated pursuant to subdivision (a) that are pending or unresolved upon expiration of the relevant timeframe specified in Sections 1368.01 and 1374.30 or for which the health care service plan upholds its decision to modify, delay, or deny the requested treatment are subject to automatic submission to independent medical review pursuant to Section 1374.37.
(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.
(f) The director may issue instructions to health care service plans regarding compliance with this section, including the required contents of the acknowledgment to be provided to enrollees pursuant to subdivision (b). These instructions 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). Instructions issued pursuant to this subdivision shall be effective only until the director adopts regulations pursuant to the Administrative Procedure Act, which shall be no later than January 1, 2027.

SEC. 3.

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

1374.37.
 (a) (1) Commencing July 1, 2025, January 1, 2026, a health care service plan that, itself or through its delegates, upholds its decision, in whole or in part, to modify, delay, or deny a health care service in response to a grievance submitted by an enrollee or processed pursuant to Section 1368.012, or has a grievance that is otherwise pending or unresolved upon expiration of the relevant timeframe specified in Sections 1368.01 and 1374.30, shall automatically submit within 24 hours a decision regarding a disputed health care service to the Independent Medical Review System and all information that informed the health care service plan’s conclusion if the health care service plan’s 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 the lack of medical necessity of the requested covered health care service, in whole or in part.
(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, including notice requirements, the assessment fee system under Section 1374.35, and provisions regarding the department’s authority to determine the nature of a grievance as a matter of coverage or medical necessity, in whole or in part.
(3) The requirement that an enrollee complete the health care service plan grievance process before automatic submission of a decision to the Independent Medical Review System pursuant to paragraph (1) shall not apply to cases involving an imminent and serious threat to the health of the enrollee, as described in subparagraph (A) of paragraph (1) of subdivision (b) of Section 1368. In those circumstances, the health care service plan shall immediately submit the case to the Independent Medical Review System and coordinate with the enrollee or the enrollee’s representative on the submission of all information and documentation required by the department to process the expedited independent medical review.
(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 both of the following:
(A) Notification to the enrollee that the enrollee or their representative may cancel the independent medical review at any time before the rendering of a determination and may provide additional information 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.
(C) The department’s application for independent medical review.
(D) Any other content that is required by the department.
(2) Concurrent with the notice specified in paragraph (1), the health care service plan shall provide the enrollee and the enrollee’s provider with copies of all documents described in subdivision (n) of Section 1374.30. The health care service plan shall coordinate with the enrollee and provider for the completion of a signed independent medical review application that includes consent to release medical records and, if necessary, an authorized representative form.
(3) The department may close independent medical review cases submitted automatically pursuant to this section if the enrollee or authorized representative fails to complete an independent medical review application within 30 days of the department notifying the enrollee or authorized representative and provider of the incomplete application.
(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.
(f) The director may issue instructions to health care service plans regarding compliance with this section, including the required contents of the notice to be provided to enrollees pursuant to subdivision (b) and requirements on the submission of medical records and other information by health care service plans when automatically submitting a decision to the Independent Medical Review System pursuant to subdivision (a). These instructions 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). Instructions issued pursuant to this subdivision shall be effective only until the director adopts regulations pursuant to the Administrative Procedure Act, which shall be no later than January 1, 2027.

(f)

(g) The department shall provide a quarterly public report on the number of automatic independent medical review cases that are received, the number of automatic independent medical review cases that are resolved, the outcome of resolved cases, and the number of automatic independent medical review cases that are canceled and closed.

SEC. 4.

 Section 10169.4 is added to the Insurance Code, to read:

10169.4.
 (a) Commencing July 1, 2025, January 1, 2026, a disability insurer that provides coverage for mental health or substance use disorders pursuant to Section 10144.5 shall treat a modification, delay, or denial issued in response to an authorization request for coverage of treatment for a mental health or substance use disorder for an insured up to 26 years of age as if the modification, delay, or denial is also a grievance submitted by the insured in accordance with this article.
(b) (1) A grievance automatically generated pursuant to subdivision (a) shall be treated by the insurer and the department in the same manner as a grievance seeking to appeal the decision of the disability insurer to modify, delay, or deny the requested treatment for the insured, and shall be considered to have been submitted by the insured or the insured’s representative to the insurer on the same date as the decision to modify, delay, or deny the requested treatment is issued by the insurer. The insurer shall not require the insured or the insured’s representative to take any additional action to initiate or continue the grievance processing procedure.
(2) The insurer shall provide a written acknowledgment of the grievance generated pursuant to subdivision (a) concurrent with the notification to the insured under subdivision (h) of Section 10123.135 of the decision to modify, delay, or deny the requested treatment. The acknowledgment shall include an explanation of the grievance process and relevant timeframes for completion, criteria under subdivision (c) of Section 10169.3 for treatment of a grievance as an expedited case, including whether the present grievance is to be processed on an expedited basis and automatically submitted to the Independent Medical Review System under Section 10169.6, contact information for the insurer, including a telephone number through which the insured may receive a status update on the grievance or withdraw the automatically generated grievance, and contact information for the department.
(c) The acknowledgment described in subdivision (b) shall include a statement that the insured may choose to withdraw the automatically generated grievance. A withdrawal by the insured or their representative of a grievance automatically generated pursuant to this section before the disability insurer’s determination on the grievance shall not, by itself, disqualify the insured or their representative from later submitting a grievance related to the same underlying modification, delay, or denial of the requested mental health or substance use disorder treatment.
(d) Grievances automatically generated pursuant to subdivision (a) that are pending or unresolved upon expiration of the relevant timeframe specified in Section 10169 or for which the disability insurer upholds its decision to modify, delay, or deny the requested treatment are subject to automatic submission to independent medical review pursuant to Section 10169.6.
(e) The commissioner may issue instructions to disability insurers regarding compliance with this section, including the required contents of the acknowledgment to be provided to insureds pursuant to subdivision (b). These instructions 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). Instructions issued pursuant to this subdivision shall be effective only until the department adopts regulations pursuant to the Administrative Procedure Act, which shall be no later than January 1, 2027.

SEC. 5.

 Section 10169.6 is added to the Insurance Code, immediately following Section 10169.5, to read:

10169.6.
 (a) (1) Commencing July 1, 2025, January 1, 2026, a disability insurer that, itself or through its delegates, upholds its decision, in whole or in part, to modify, delay, or deny a health care service in response to a grievance submitted by an insured or processed pursuant to Section 10169.4, or has a grievance that is otherwise pending or unresolved upon expiration of the relevant timeframe specified in Section 10169, shall automatically submit within 24 hours a decision regarding a disputed health care service to the Independent Medical Review System and all information that informed the disability insurer’s conclusion if the disability insurer’s 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 the lack of medical necessity of the requested covered health care service, in whole or in part.
(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.
(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, including notice requirements, the assessment fee system under Section 10169.5, and provisions regarding the department’s authority to determine the nature of a grievance as a matter of coverage or medical necessity, in whole or in part.
(3) The requirement that an insured complete the disability insurer grievance process before automatic submission of a decision to the Independent Medical Review System pursuant to paragraph (1) shall not apply to cases involving an imminent and serious threat to the health of the insured, as described in subdivision (c) of Section 10169.3. In those circumstances, the disability insurer shall immediately submit the case to the Independent Medical Review System and coordinate with the insured or the insured’s representative on the submission of all information and documentation required by the department to process the expedited independent medical review.
(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 both of the following:
(A) Notification to the insured that the insured or their representative may cancel the independent medical review at any time before the rendering of a determination and may provide additional information 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.
(C) The department’s application for independent medical review.
(D) Any other content that is required by the department.
(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. The insurer shall coordinate with the insured and provider for the completion of a signed independent medical review application that includes consent to release medical records and, if necessary, an authorized representative form.
(3) The department may close independent medical review cases submitted automatically pursuant to this section if the insured or authorized representative fails to complete an independent medical review application within 30 days of the department notifying the insured or authorized representative and provider of the incomplete application.
(c) Sections 10144.5, 10144.51, 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) (1) The commissioner may issue guidance regarding compliance with this section, no later than January 1, 2027. The guidance 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). Guidance issued pursuant to this paragraph shall remain in effect until the commissioner promulgates regulations pursuant to paragraph (2).

(e)

(2) 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 and Section 10169.4. section.
(f) The department shall provide a quarterly public report on the number of automatic independent medical review cases that are received, the number of automatic independent medical review cases that are resolved, the outcome of resolved cases, and the number of automatic independent medical review cases that are canceled and closed.

SEC. 6.

 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.