Bill Text: CA SB399 | 2017-2018 | Regular Session | Amended

California Senate Bill 399 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft

Bill Title: Health care coverage: pervasive developmental disorder or autism.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Vetoed) 2018-09-29 - In Senate. Consideration of Governor's veto pending. [SB399 Detail]

Download: California-2017-SB399-Amended.html

Amended IN Senate April 17, 2017

Amended IN Senate March 20, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill

No. 399

Introduced by Senator Portantino

February 15, 2017

An act to amend Section 1374.73 of the Health and Safety Code, and to amend Section 10144.51 of the Insurance Code, relating to health care coverage.

LEGISLATIVE COUNSEL'S DIGEST

SB 399, as amended, Portantino. Health care coverage: pervasive developmental disorder or autism.

Existing law, the Lanterman Developmental Disabilities Services Act, requires the State Department of Developmental Services to contract with regional centers to provide services and supports to individuals with developmental disabilities and their families. Existing law defines developmental disability for these purposes, to include, among other things, autism.

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 also provides for the regulation of health insurers by the Department of Insurance. Existing law requires a health care service plan contract or a health insurance policy to provide coverage for behavioral health treatment for pervasive developmental disorder or autism, and defines “behavioral health treatment” to mean specified services provided by, among others, a qualified autism service professional or a qualified autism service paraprofessional supervised and employed by a qualified autism service provider. A “qualified autism service provider” is defined as a person, entity, or group that meets certain certification and specialization criteria or a person licensed as a specified healing arts professional who meets certain specialization criteria. For purposes of this provision, existing law defines a “qualified autism service professional” to mean a person who, among other requirements, is a behavioral 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 also defines a “qualified autism service paraprofessional” to mean an unlicensed and uncertified individual who, among other things, meets the criteria set forth in regulations adopted pursuant to the provisions that require the State Department of Social Services to adopt emergency regulations regarding the use of paraprofessionals in group practice provider behavioral intervention services for developmentally disabled persons living in the community.

This bill, among other things, ~~would no longer require qualified autism service professionals or paraprofessionals to be employed by a qualified autism service provider and~~ would no longer permit entities or groups to be qualified autism service providers. The bill would expand the definition of “qualified autism service professional” to include behavioral service providers who meet specified educational, professional, and work experience qualifications. The bill, with regard to the definition of “qualified autism service paraprofessional,” would also authorize the substitution of specified education, work experience, and training ~~qualifications~~ qualifications, or the substitution of specified credentialing or certification, for the requirement to meet the criteria set forth in regulations adopted by the State Department of Social Services, as described above. The bill would also require providers to pass a background check, as specified, in order to meet the definition of a qualified autism service professional or a qualified autism service paraprofessional.

This bill would require that the treatment plan be reviewed, as ~~specified.~~ specified, and would require that the intervention plan include parent or caregiver participation that is individualized to the patient and that takes into account the ability of the parent or caregiver to participate in therapy sessions and other recommended activities. The bill would specify that health care service plans and health insurers are not required to provide reimbursement for services delivered by school personnel pursuant to an enrollee’s individualized educational program unless otherwise required by law, that lack of parent or caregiver participation not be used to deny or reduce medically necessary ~~behavioral health treatment,~~ services, and that the setting, location, or time of treatment not be used as a reason to deny medically necessary ~~behavioral health treatment.~~ services. Because a willful violation of the bill’s provisions by a health care service plan would be a crime, it would impose a state-mandated local program.

Existing law makes the above-described provisions relating to the provision of coverage for behavioral health treatment for pervasive developmental disorder or autism inapplicable to certain health care service plan contracts and health insurance policies, including, among others, a health care benefit plan or contract entered into with the Board of Administration of the Public Employees’ Retirement System pursuant to the Public Employees’ Medical and Hospital Care Act.
This bill would make these provisions applicable to a health care benefit plan or contract entered into with the Board of Administration of the Public Employees’ Retirement System pursuant to the Public Employees’ Medical and Hospital Care Act.

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) Autism and other pervasive developmental disorders are complex neurobehavioral disorders that include impairments in social communication and social interaction combined with rigid, repetitive behaviors, interests, and activities.

(b) Autism covers a large spectrum of symptoms and levels of impairment ranging in severity from somewhat limiting to a severe disability that may require institutional care.

(d) Research has demonstrated that children diagnosed with autism can often be helped with early administration of behavioral health treatment.

(e) There are several forms of evidence-based behavioral health treatment, including, but not limited to, applied behavioral analysis.

(f) Children diagnosed with autism respond differently to behavioral health treatment.

(g) It is critical that each child diagnosed with autism receives the specific type of evidence-based behavioral health treatment best suited to him or her, as prescribed by his or her physician or developed by a psychologist.

(h) The Legislature intends that evidence-based behavioral health treatment be covered by health care service plans, pursuant to Section 1374.73 of the Health and Safety Code, and health insurance policies, pursuant to Section 10144.51 of the Insurance Code.

(i) The Legislature intends that health care service plan provider networks include qualified professionals practicing all forms of evidence-based behavioral health.

SEC. 2.

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.

(5) This section shall not be construed to require a health care service plan to provide reimbursement for services delivered by school personnel pursuant to an enrollee’s individualized educational program unless otherwise required by law.

(b) Every health care service plan subject to this section shall maintain an adequate network that includes qualified autism service providers who supervise and employ 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.

(1) “Behavioral health treatment” means professional services and treatment programs, including applied behavior analysis and other evidence-based behavior intervention programs, that ~~develop~~ develop, maintain, 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.~~ provider or by a qualified autism service professional under the direction of a qualified autism ser vice 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~~ less than once every six months ~~or less than once every 12 months~~ by the qualified autism service provider, unless a shorter period is recommended by the qualified autism service provider, or included in the treatment plan developed 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 participation needed 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.~~ The plan shall include parent or caregiver participation that is individualized to the patient and that takes into account the ability of the parent or caregiver to participate in therapy sessions and other recommended activities.

(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.

(v) Makes the current treatment plan available to the health care service plan upon request.

(D) The treatment plan is not used for purposes of providing or for the reimbursement of respite, day care, or educational services and is not used to reimburse a parent for participating in the treatment program.

~~(E)The setting, location, or time of treatment shall not be used as a reason to deny treatment.~~

(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 who is certified by a national entity, such as the Behavior Analyst Certification Board, in a certification that is accredited by the National Commission for Certifying Agencies, the American National Standards Institute, or a national standards body sanctioned by the American National Standards Institute, 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 who 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 employed by a qualified autism service provider or the entity that employs the supervising qualified autism service provider who meets all of the following criteria:

(A) Provides behavioral health treatment, which may include clinical management and case supervision under the direction and supervision of a qualified autism service provider.

(B) Is supervised by a qualified autism service provider.

(D) Is a behavioral service provider who meets one of the following criteria:

(i) Meets the requirements to be 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 as defined in Section 54342 of Title 17 of the California Code of Regulations.

(ii) Possesses a bachelor of arts or science degree and meets one of the following qualifications:

(I) One year of experience in designing or implementing behavioral health treatment supervised by a qualified autism service provider and 12 semester units from an accredited institution of higher learning in either applied behavioral analysis or clinical coursework in behavioral health.

(II) Two years of experience in designing or implementing behavioral health treatment supervised by a qualified autism service provider.

(III) The person is a registered psychological assistant or registered psychologist pursuant to Chapter 6.6 (commencing with Section 2900) of Division 2 of the Business and Professions Code.

(IV) The person is an associate clinical social worker registered with the Board of Behavioral Sciences pursuant to Section 4996.18 of the Business and Professions Code.

(V) The person is a registered associate marriage and family therapist with the Board of Behavioral Sciences pursuant to Section 4980.44 of the Business and Professions Code.

(VI) The person is a registered associate professional clinical counselor with the Board of Behavioral Sciences pursuant to Section 4999.42 of the Business and Professions Code.

(VII) The person is credentialed or certified by a national entity, including, but not limited to, the Behavior Analyst Certification Board, in a credential or certification that is accredited by the National Commission for Certifying Agencies, the American National Standards Institute, or a national standards body sanctioned by the American Standards Institute, to provide applied behavior analysis or behavioral health treatment, which may include case management and case supervision under the direction and supervision of a qualified autism service provider.

(E) Has training and experience in providing services for pervasive developmental disorder or autism.

(F) Has successfully passed a background check performed by a Department of Justice approved agency, with subsequent notification to his or her employer pursuant to Section 11105.2 of the Penal Code.

(5) “Qualified autism service paraprofessional” means an unlicensed ~~and uncertified~~ individual employed by a qualified autism service provider or the entity that employs the qualified autism service provider and who meets all of the following criteria:

(A) Is supervised by a person who is a qualified autism service provider or qualified autism service ~~professional.~~ professional under the direction of 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.

(i) The education and training criteria set forth in the regulations adopted pursuant to Section 4686.3 of the Welfare and Institutions ~~Code or meets all~~ Code.

(ii) All of the following qualifications:

~~(i)~~

(I) Possesses an associate’s degree or has completed two years of study from an accredited college or university with coursework in a related field of study.

~~(ii)Has six months of experience working with persons with a developmental disability.~~
~~(iii)~~

(II) Has 40 hours of training in the specific form of ~~evidence-based~~ behavioral health treatment developed ~~and administered~~ by a qualified autism service provider ~~or qualified autism service professional.~~ and administered by a qualified autism service provider or qualified autism service professional competent in the form of behavioral health treatment to be practiced by the paraprofessional.

~~(iv)Has successfully passed a background check conducted by a state-approved agency.~~
~~(v)~~

(III) Has adequate education, training, and experience, as certified by a qualified autism service provider.

(iii) Is credentialed or certified in applied behavior analysis or behavioral health treatment for paraprofessionals or technicians by a national entity, including, but not limited to, the Behavior Analyst Certification Board or another credentialing or certifying entity that is accredited by the National Commission for Certifying Agencies, the American National Standards Institute, or a national standards body sanctioned by the American National Standards Institute, or has completed the training component of a credential or certification program, is otherwise qualified under this paragraph, and has not provided treatment or implemented services for more than 180 days.
(D) Has successfully passed a background check performed by a Department of Justice approved agency, with subsequent notification to his or her employer pursuant to Section 11105.2 of the Penal Code.

(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).

~~(3)A health care service plan contract in the Healthy Families Program (Part 6.2 (commencing with Section 12693) of Division 2 of the Insurance Code).~~
(4)A health care benefit plan or contract entered into with the Board of Administration of the Public Employees’ Retirement System pursuant to the Public Employees’ Medical and Hospital Care Act (Part 5 (commencing with Section 22750) of Division 5 of Title 2 of the Government Code).

(e) Nothing in this section shall be construed to limit the obligation to provide services under Section 1374.72.

(f) (1) 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.

(2) If a health care service plan uses utilization review techniques, it shall not be conducted more frequently than every six months and shall be conducted in accordance with good professional practice and the requirements of Section 1363.5.
(g) (1) The setting, location, or time of treatment recommended by the qualified autism service provider shall not be used as a reason to deny or reduce coverage for medically necessary services.
(2) Lack of parent or caregiver participation shall not be used as a basis for denying or reducing coverage of medically necessary services.
(3) Provision of services under this section, including any limits on the scope or duration of these services, shall be in compliance with the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (Public Law 110-343), and all rules, regulations, or guidance issued pursuant to Section 2726 of the federal Public Health Service Act (42 U.S.C. Sec. 300gg-26).

SEC. 3.

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).

(5) This section shall not be construed to require a health insurer to provide reimbursement for services delivered by school personnel pursuant to an enrollee’s individualized educational program unless otherwise required by law.

(b) Pursuant to Article 6 (commencing with Section 2240) of Subchapter 2 of Chapter 5 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 and employ 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.

(1) “Behavioral health treatment” means professional services and treatment programs, including applied behavior analysis and other evidence-based behavior intervention programs, that ~~develop or~~ develop, maintain, 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:

(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.

(i) Describes the patient’s behavioral health impairments or developmental challenges that are to be treated.

(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.

(v) Makes the current treatment plan available to the health insurer upon request.

~~(E)The setting, location, or time of treatment shall not be used as a reason to deny medically necessary behavioral health treatment.~~

(2) “Pervasive developmental disorder or autism” shall have the same meaning and interpretation as used in Section 10144.5.