final 2011 california health care laws - foley & lardner · or injurious to any person or to...

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Key California Key California Health Care Laws 2011Health Care Laws 2011

Friday, December 10, 2010 11:30 a.m. – 1:00 p.m. CT

Dial-In: 1-866-793-1344 * Access Code: 1497550

©2010 Foley & Lardner LLP 2

Today’s Presenters

Anil ShankarLos Angeles,CA213.972.4584

[email protected]

Richard K. RifenbarkLos Angeles,CA213.972.4813

[email protected]

Shirley P. MorriganLos Angeles,CA213.972.4668

[email protected]

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Agenda for Today

S.B. 270 Medical InformationS.B. 700 Peer ReviewA.B. 583 Disclosures of EducationA.B. 1767 Disciplinary ProceedingsS.B. 953 PodiatryS.B. 1069 Physician AssistantsS.B. 1172 Diversion ProgramsA.B. 1503 Emergency Medical Care BillingA.B. 1863 Diesel GeneratorsS.B. 900/A.B. 1602 Health Benefit ExchangeA.B. 1653 Hospital Provider FeeS.B. 208/A.B. 342 Medi-Cal Demonstration ProjectS.B. 1399 Medical ParoleS.B. 608 Seismic SafetyS.B. 1237 Radiation ControlA.B. 278 Health Information Exchange Demonstrations

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S.B. 270: Medical Information

Sponsor: Alquist (D)Proponents:– Health and Human Services Agency– American Civil Liberties Union– Community Health Partnership– Department of Public Health– El Camino Hospital

Opponents:– None on record


S.B. 270: Current Law

Unlawful or unauthorized access to, and use or disclosure of, a patient’s medical information must be reported within 5 business days of being detected– Report to:

The California Department of Public Health, andThe affected patient

Applies to licensed clinics, health facilities, home health agencies, and hospices

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S.B. 270: Current Law (cont.)

Reporting to the affected patient may be delayed if– A law enforcement agency or official provides a

written or oral statement that reporting would impede a law enforcement agency’s activities related to the unlawful or unauthorized access to the information

– Still report to the Department of PublicHealth (DPH) within 5 business days

Fines for failure to timely report ($100 per day)


S.B. 270: New Law

Clarifies that misdirected internal papers, emails, or faxes do not constitute unauthorized disclosure of a patient’s medical informationCreates rebuttable presumption a facility did not notify the affected patient if the notification is not documented

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S.B. 270: New Law (cont.)

Amends the requirement for delaying report to affected patient– A law enforcement agency or official

provides a written or oral statement that reporting would impede a law enforcement agency’s investigation related to the unlawful or unauthorized access to the information

– This narrows the scope of the exemption that allows delay of reporting to the patient


S.B. 700: Peer Review

Sponsor: Negrete McLeod (D)Proponents:– California Medical Association– Center for Public Interest Law– Medical Board of California


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State policy is to provide for the professional review of healing arts licentiates through a peer review process– May lead to exclusion or suspension for

professional misconduct or for substandard care – Some disciplinary actions from peer review

bodies must be reported to state licensing boards



Some specified healing arts licentiates who are subject to a final proposed action of a peer review body based on a medical disciplinary cause or reason have certain procedural rights, including notice and a hearing

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Section 805 requires a report (805 report) to a licensing board if certain actions are taken by a peer review body for a “medical disciplinary cause or reason”– Denial or rejection of application for

staff privileges or membership – Termination or revocation of staff

privileges, membership, or employment



– Restrictions are imposed, or voluntarily accepted, on staff privileges, membership, or employment for a cumulative total of 30 days or more for any 12-month period

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– Resignation, leave of absence, or withdrawal of application or request for staff privileges or membership, after receiving notice of an impending investigation or the denial or rejection of an application

– Summary suspension of staff privileges, membership, or employment for more than 14 days



State licensing boards maintain a “central file” for each health care practitioner– Includes the Boards of: Medicine, Psychology,

Dentistry, Osteopathy, Chiropractic Examiners, Registered Nurses, Vocational Nurses and Psychiatric Technicians, Optometrists, Veterinarians, Behavioral Sciences, Physical Therapy, Pharmacy, Speech-Language Pathology and Audiology, Occupational Therapy, Acupuncture

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Central file contains

– Criminal convictions

– Judgments or settlements for professional negligence

– Public complaints– 805 reports following disciplinary

action of a peer review body



Central file is confidential– Licensee (or counsel or representative) may

inspect and make copies, except for provisions that disclose the identity of an information source

Facilities must request 805 reports from the Board prior to granting or renewing staff privileges – Applies to physicians and surgeons,

psychologists, podiatrists, and dentists

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Boards must make certain information available to inquiring members of the public– Applies to Boards of Medicine,

Osteopathy, Podiatry– Enforcement actions (restraining orders;

revocations, suspensions, practice limitations, public letters of reprimand, felony convictions, etc.)

– Civil judgments and settlements



– Board certifications, postgraduate training, and license status

– Summaries of hospital disciplinary actions that result in termination or revocation of staff privileges

– Boards must give licensee an opportunity to submit additional information

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S.B. 700: New Law

Adds definition of “peer review”

– A process in which a peer review body reviews the basic qualifications, staff privileges, employment, medical outcomes, or professional conduct of licentiates to make recommendations for quality improvement and education, if necessary, in order to do either or both of the following:



Determine whether a licentiate may practice or continue to practice in a health care facility, clinic, or other setting providing medical services, and, if so, to determine the parameters of that practiceAssess and improve the quality of care rendered in a health care facility, clinic, or other setting providing medical services

– Any other activities of a peer review body

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Requires reports from peer review bodies of certain recommended actions, if after a formal investigation, the body finds one of the following:– Incompetence (or gross or repeated

deviation from the standard of care involving death or serious bodily injury), to the extent or in such a manner as to be dangerous or injurious to any person or to the public



– Use of controlled substances, dangerous drugs or alcoholic beverages, if likely to be dangerous to the licentiate, another person, or the public, or if it impairs the ability of the licentiate to practice safely

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– Repeated acts of prescribing, furnishing, or administering controlled substances that are clearly excessive or that lack a good faith prior examination of the patient and medical reason therefor

– Sexual misconduct with one or more patients during the course of examination



The licensing board may inspect and copy certain documents from the formal investigation by the peer review body, including– Statement of charges– Documents, medical charts, exhibits– Opinions, findings, or conclusions– Certified copy of medical records, as permitted

by applicable lawThe Board will place the report in the licentiate’s “central file”

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Licentiates may submit additional explanatory or exculpatory statements electronically to the Board to supplement the report. – Statements will also be included in the central

file– Statements will be made available to the public



If a court makes a final judgment finding that the peer review resulting in the disciplinary action was conducted in bad faith, Boards will not– Provide summaries of the disciplinary

action to the public– Provide 805 reports to facilities for purpose

of granting or renewing staff privileges

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A.B. 583: Disclosures of Education

Sponsor: Hayashi (D)Proponents:– California Medical Association– California Society of Plastic Surgeons– Association of Northern California

Oncologists– California Psychiatric Association– California Senior Legislature



A.B. 583: Current Law

A licensed health care practitioner is required to wear a name tag that displays his or her name and license status while working

– At least 18 point type

– Exceptions:

A practitioner in an office where the practitioner’s license is prominently displayed

Workers in settings not licensed by the state

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A.B. 583: New Law

A health care practitioner must communicate to patients his or her name, license type, and highest level of academic degree– Either in writing at initial office visit, or in a

prominent display in an area visible to patients in the office

– Also on a website directly controlled or administered by the practitioner, or his or her office

– Physicians must also disclose their Board certification


A.B. 583: New Law (cont.)

Does not apply to– Health care practitioners who work in a hospital

or other licensed health care facility or clinical laboratory

– A provider in a medical group that has an exclusive contract with a health care service plan in a specified geographic area

– Clinical laboratory licensees, hearing aid dispensers, respiratory therapists, veterinarians, marriage and family therapists, or social workers

– Pharmacists are not required to disclose highest academic degree

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If in writing, must be 24 point type, with the following format:

HEALTH CARE PRACTITIONER INFORMATIONName and License………………………………….Highest level of academic degree…………………Board certification (ABMS/MBC)..…………………


A.B. 1767: Disciplinary Proceedings

Sponsor: Hill (D)Proponents:– Medical Board of California– American College of Obstetricians and

GynecologistsOpponents:– None on record

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The Medical Board often retains licensed health care practitioners to provide expert or non-expert testimony to the Board– Expert witnesses help establish standards of

care and deviations from standards of care– May evaluate the conduct of an applicant or

licensee


A.B. 1767: Current Law (cont.)

If a person hired or retained (paid or unpaid) to provide expert or non-expert testimony to the Medical Board is named as a defendant in an action for defamation, malicious prosecution, or any other civil action directly resulting from the testimony, then the Board shall provide for representation for the defendant in that civil action

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A.B. 1767: New Law

Legislative declaration: “A disturbing trend may be emerging whereby board-certified physicians and surgeons may be subject to discipline from the very boards that certified them as expert witnesses for the Medical Board of California in administrative proceedings. Actual or threatened discipline against board-certified physicians and surgeons may chill participation in the board’s expert reviewer program.”



If a licensed physician or surgeon provides expertise to the Medical Board in the evaluation of an applicant or licensee, then the Office of the Attorney General shall represent the physician and surgeon in that a disciplinary proceeding regarding any allegation brought against the physician as a direct result of providing that expertise.

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S.B. 953: Podiatry

Sponsor: Walters (D)Proponents:– California Board of Podiatric Medicine




In an emergency situation, physicians and surgeons and podiatrists are not liable for civil damages for injury or death that occurs in a hospital or the licensee’s office, if it was caused by a failure to inform a patient of the possible consequences of a medical procedure, if– The patient is unconscious,– There is insufficient time to fully inform the

patient, and the licensee reasonably believes the procedure should be undertaken immediately, or

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– The person is legally incapable of giving consent, and the licensee reasonably believes the procedure should be undertaken immediately

– This exemption does not apply to negligence in rendering or failing to render, but only to damages arising from a failure to inform



– Statute states: “Nothing in this article shall be construed to authorize practice by a podiatrist beyond” the scope of the podiatrist’s practice.

– Separate statutory authority exempts physicians and surgeons and podiatrists from civil damages as a result of acts or omissions in good faith rendering of emergency care at the scene of an emergency

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S.B. 953: New Law

Removes statement that: “Nothing in this article shall be construed to authorize practice by a podiatrist beyond” the scope of the podiatrist’s practiceEnacts legislative intent language stating that the amendment shall not be construed to modify the scope of practice of podiatrists


S.B. 1069: Physician Assistants

Sponsor: Pavley (D)Proponents:– California Academy of Physician

Assistants– American College of Obstetricians and

Gynecologists– American Federation of State, County and

Municipal Employees– California Academy of Family Physicians– California Assisted Living Association

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S.B. 1069: Physicians Assistants (cont.)

– California Chapter of the American College of Emergency Physicians

– California Medical Association– California Radiological Society– Medical Board of California– Osteopathic Physicians and Surgeons of

California– United Nurses Association of California/Union of

Health Care ProfessionalsOpponents: None on record



Physician assistants (PAs) may perform medical services under the supervision of a physician and surgeon, in accordance with written guidelines– The medical services that may be performed are

those set forth in regulations of the Medical Board

Clarifies that a PA acts as an agent of a supervising physician when performing the activities authorized by law

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Adds definition of “delegation of services agreement”

– Writing that delegates to a PA from a supervising physician the medical services the PA is authorized to perform



Notwithstanding any other law, a delegation of services agreement may authorize a PA to– Order durable medical equipment– For individuals receiving home health services

or personal care services, after consultation with the supervising physician, approve, modify, sign, or add to a plan of treatment or plan of care

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PAs may perform the following functions and sign or certify related documentation– That an individual diagnosed as deaf or hearing

by a physician and surgeon may participate in a state telecommunications program

– That an individual is disabled and may qualify to participate in the state telephone communications equipment program



– That individuals who seek employment at a community college or school district are free of communicable disease, such as tuberculosis

– That applicants for teacher certification are free from communicable disease or other disabling disease

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– Results of vision tests parents may submit to a school district to waive the required vision assessment of school-aged children

– Order medications for pupils to take during school, and provide written statements to school districts detailing information about the medication

– Perform physical examinations for students participating in interscholastic athletic programs


S.B. 1172: Diversion Programs

Sponsor: McLeod (D)Proponents:– Board of Behavioral Sciences– Medical Board of California


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The Department of Consumer Affairs (DCA) is comprised of various licensing Boards

– E.g., the Boards of Medicine, Dentistry, and Optometry

– Each Board establishes standards and acts for which it may suspend, revoke, or deny a license



Commission established to develop uniform substance abuse standards in DCA’s healing arts Boards

– E.g., frequency of testing, randomness, methods of notice, standards for determining required follow up care, etc.

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Individual Boards determine whether to use diversion programs– Licentiates who abuse drugs and/or alcohol may

be “diverted” from the disciplinary track into a program aimed at recovery that monitors their compliance with the terms of the program

– The programs are voluntary



Boards may outsource these programs to private vendorsMedical Board has discontinued its physician diversion program

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Individuals or entities that contract with DCA or any of the Boards for the provision of services related to the treatment and rehabilitation of licentiates impaired by alcohol or dangerous drugs, shall retain all records and documents pertaining to those services– Must keep for 3 years or until the records

are audited, whichever occurs first– DCA and Boards shall keep confidential

and privileged


S.B. 1172: New Law

If a licensee tests positive for any substance that is prohibited under the terms of the licensee’s probation or diversion program, the Board shall order the licensee to cease practice– The Order shall not constitute disciplinary action– Does not apply to the Board of Registered

Nursing

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Boards may adopt regulations authorizing the Board to order licensees on probation or in a diversion program to cease practice for “major violations”– May also specify when licensees must undergo a

clinical diagnostic evaluation



Individuals or entities that contract with DCA or any of the Boards for the provision of services related to the treatment and rehabilitation of licentiates impaired by alcohol or dangerous drugs, shall retain all records and documents pertaining to those services– Must keep for 3 years, regardless of

when an audit occurs– DCA and Boards still shall keep confidential and

privileged

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A.B. 1503: Emergency Medical Care Billing

Sponsor: Lieu (D)Proponents:– Health Access– American Federation of State, County and

Municipal Employees, AFL-CIO– Congress of California Seniors– Western Center on Law & Poverty




Requires hospitals to maintain written charity care and discount care policies– Uninsured patients or patients with high medical

costs who have income at or less than 350% of the Federal Poverty Level (FPL) must be eligible to apply

For eligible patients, hospitals must limit expected payment to rates set by a government health care program – E.g., Medicare, Medi-Cal, Healthy Families, etc.

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Counties are authorized by state law to create a Maddy Emergency Medical Services (EMS) Fund– Fund contains money collected from penalties

levied in connection with: criminal offenses, vehicle violations, violations related to alcoholic beverages and the Vehicle Code



Physicians and surgeons may submit claims for emergency services provided to patients who do not make any payment, and for whom no third party is responsible– County adopts a fee schedule and uniform

reimbursement methodology

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Claims must be for patients who were medically screened, evaluated, treated, or stabilized in a hospital emergency department or paramedic receiving station– Exceptions: National Park Service facilities,

certain standby emergency rooms in L.A. County



Physicians/surgeons must have– Inquired if there is a responsible 3rd party

source of payment– Billed the patient for services– At least 3 months must have passed from the

date of billing, or have received actual notification that no payment will be made

– Stopped any current (and waived any future) attempt to collect from the patient

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A.B. 1503: New Law

Emergency physicians must offer discount payments

– Uninsured patients or patients with high medical costs who are at or below 350% FPL may apply for a discount

– Must limit expected payment for services to such patients to no greater than 50% of the median of billed charged, based on a nationally recognized database of physician and surgeon charges



FAIR Health, Inc. is a nonprofit corporation that is creating a database that will make available physician and surgeon rates from commercial insurers in each geographic

–These rates will be used, when available

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Emergency physicians may continue to bill for reimbursement from County Maddy funds– If reimbursement is received, must cease any

further billing or collection from the patient– If reimbursement is rejected, or not applied for,

the discount policy may applyEmergency physicians must make all reasonable efforts to obtain from the patient (or representative) information about insurance coverage for emergency care



If the emergency physician bills a patient who has not provided proof of coverage, must include– Notice of charges for the physician’s services– Ask the patient to inform the physician if the

patient has insurance coverage, Medicare, Healthy Families, Medi-Cal, or other coverage

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– A statement regarding the potential availability of government insurance programs and the potential availability of discounts, including the name and telephone number where the patient may obtain more information



The statute includes a model statement to be included in the bill

– “If you are uninsured or have high medical costs, please contact ________ [name of person responsible for discount payment policy] at _________ [area code and phone number] for information on discounts and programs for which you may be eligible, including the Medi-Cal program. If you have coverage, please tell us so that we may bill your plan.”

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Also include the emergency physician’s chargesIf the emergency physician cannot provide this notice, may– Print “If uninsured or high medical bill,

call re: discount” on the bill– Make information available on request



Emergency physicians must have a written policy about when and under whose authority patient debt is advanced for collection– Must have a written agreement with debt

collection agencies, which must adhere to the emergency physician’s standards and scope of practice

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Emergency physicians and their assignees (including debt collection agencies) may not report adverse information to consumer credit reporting agencies, or commence civil actions against a patient if– The patient provides information that they lack

coverage or have high medical costs, emergency physicians and their assignees, and less than 150 days has passed from the initial billing



– The patient is attempting to qualify under the physician’s discount payment policy and attempting in good faith to settle an outstanding bill

Emergency physicians and their assignees (including debt collection agencies)– May not impose wage garnishment or liens on

primary residences on patients eligible for discount payment policies, except in certain circumstances

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– Must make extended payment plans offered to patients eligible for discount payments interest free, and follow a specified timeline and procedure for declaring an extended payment plan inoperative

– Must provide patients with a summary of their rights prior to collecting commencement activities


A.B. 1863: Diesel Generators

Sponsor: Gaines (R)Proponents:– The California Hospital Association– Bay Area Air Quality Management District– California Air Pollution Control Officers

Association– South Coast Air Quality Management District


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Health facilities must maintain backup generators to provide lighting and power in case of a power failure

Health facilities must test diesel-powered backup generators 12 times a year, with testing intervals of between 20 and 40 days



– Applies to acute care hospitals, acute psychiatric hospitals, skilled nursing facilities, intermediate care facilities, special hospitals, intermediate care facilities for the developmentally disabled, and nursing facilities

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Tests must last 30 minutes, and comply with specified standardThese requirements are to be repealed January 1, 2011


A.B. 1863: New Law

Extends the testing requirements for backup diesel generator requirement through January 1, 2016No other changes

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S.B. 900: Health Benefit Exchange

Sponsor: Alquist (D)Proponents:– 100% Campaign– AARP– California Chiropractic Association– California Medical Association– California Primary Care Association– CALPIRG– Children Now– Children’s Defense Fund-California– Congress of California Seniors


Proponents (cont.):– Consumers Union – Health Access– International Brotherhood Electrical Workers– Local Health Plans of California – PICO California– Planned Parenthood Advocacy

Project Los Angeles County– Planned Parenthood Affiliates of California– The Children’s Partnership– United Ways of California– Western Center on Law & Poverty

S.B. 900: Health Benefit Exchange (cont.)

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Opponents– Anthem Blue Cross– Association of California Life and Health Insurance

Companies

S.B. 900: Health Benefit Exchange (cont.)



The federal health care reform law requires states to establish insurance exchanges by January 1, 2014– Federal grants are available for states to assist

with planning and development of Exchanges– If a state does not develop an Exchange, federal

government will establish one– May be operated by the government or by a

non-profit

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Exchanges facilitate the purchase of health insurance for individuals and employers– Comparative information about plans– Standardized formats– Ratings of plans– Hotline

Exchanges certify plans for participation – Must comply with Federal rules


S.B. 900: New Law

Creates the California Health Benefit Exchange– One of the first in the country– An independent public agency not affiliated with

any agency or department– 5 Board members

2 appointed by Governor1 appointed by the Secretary of Health and Human Services2 appointed by legislature

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The Board is required to apply for federal grants related to the planning and establishment of the Exchange

– $1 million in preliminary planning already awarded


A.B. 1602: California Patient Protection and Affordable Care Act

Sponsor: Perez (D)Proponents:– Local Health Plans of CASEIU– American Federation of State,

County and Municipal Employees– California Welfare Director’s Association– Health Access– Consumer’s Union– California Chiropractic Association – California Retired Teachers Association

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A.B. 1602: California Patient Protection and Affordable Care Act

Opponents:

– Anthem Wellpoint

– Association of California Life & Health Insurance Company


A.B. 1602: New Law

Signed along with SB 900The California Health Benefit Exchange will certify, recertify, and decertify health plans – Plans must justify any premium increases– Disclose information (enrollment data, claims

denials, cost-sharing information, etc)– Allow access to information for consumers

regarding coverage and cost-sharing for specific items or services by a particular provider

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A.B. 1602: New Law

The California Health Benefit Exchange will– Coordinate eligibility and enrollment with other

programs (Medi-Cal, Healthy Families)– Grant certifications of exemption to the federal

insurance mandate– Establish a program to assist small

businesses to enroll employees in plans



The Exchange will provide information to consumers – Standardized format for presenting health benefits plan

options– Toll-free hotline– Website with standardized comparative information– Plan ratings– Actual cost calculator, including premiums and cost-

sharing– Navigator program to conduct public education activities

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Participation of health plans, individuals and employers in the Exchange is voluntary– Health plans and insurers participating in the

Exchange must offer at least one product in each of the five levels of coverage required by the Affordable Care Act (bronze, silver, gold, platinum, catastrophic)

– Plans participating in the Exchange that sell products outside the Exchange must make products available in the Exchange available outside the Exchange


A.B. 1653: Hospital Provider Fee

Sponsor: Jones (D)Proponents:– California Children’s Hospital Association– California Hospital Association– Daughters of Charity Health System– Adventist Health– Alliance of Catholic Health Care– American Federation of State, County and

Municipal Employees– County of Los Angeles Board of Supervisors

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A.B. 1653: Hospital Provider Fee (cont.)

Proponents (cont’d)– County of San Bernardino Board of

Supervisors– Health Access– Loma Linda University– Private Essential Access Community Hospitals,

Inc.– Service Employees International Union

Opponents: None on record



Medicaid is a joint federal-state program– States establish payment rates for Medicaid

providers – If the payments for services comply with federal

rules, the federal government contributes at a specific Federal Medical Assistance Percentage (FMAP) rate

– California’s FMAP rate was temporarily increased to 61.59% by the American Recovery and Reinvestment Act (stimulus package)

– The increased FMAP is being phased out

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California’s Medicaid payments are limited by the state’s fiscal situation

– Shortage of state funds limits Medicaid reimbursement

– Federal contribution to fee-for-service payments is capped by an “Upper Payment Limit”



Federal law authorizes states to utilize taxes or fees on providers to generate additional funds to finance the state’s Medicaid program, if certain conditions are met– Taxes or fees must be broad-based – Must be uniformly imposed– Must not hold taxpayers harmless for their

payments (e.g., cannot guarantee the return of the tax)

Used in many states

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In 2009, California enacted a hospital provider fee statute (AB 1383) that would impose a fee on most hospitals– Exempt facilities: public hospitals; specialty

hospitals; Medicare long-term care hospitals; and small and rural hospitals

– Fee authorized through December 31, 2010– Conditioned on receiving Federal approval



AB 1383 also enacted a series of supplemental Medicaid payments to hospitals using the fee revenue and matching federal funds– Increases to Medicaid hospital reimbursement– Some of the payments were “passed through”

Medi-Cal managed health care plans– $80 million of the fee revenue was reserved by

the state each fiscal quarter to provide health care coverage for children

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In June 2010, the Centers for Medicare & Medicaid Services (CMS) sent a letter to the state expressing concerns about the hospital fee legislation

– Claimed legislation would “return” fees to contributing hospitals, in violation of federal law

– Objected to the managed care “pass-through”provisions


A.B. 1653: New Law

Enacts legislative changes necessary to ensure CMS approval of the provider fee

– Further amended by SB 208

CMS approved the fee in October 2010

– Laws now in effect

– Fees currently being assessed, and payments made

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Hospital fees are based on days reported by the hospital for calendar year 2007

Supplemental payments are for Medicaid services provided from April 1, 2009 to Dec. 31, 2010



Fees: – Annual fee-for-service days * $215.30/day – Annual managed care days * $22.50/day– Annual Medi-Cal days * $232/day– Different rates for non-profit hospitals that share

a common board of directors with a non-profit health care service plan

– Certain facilities exempt (public facilities, specialty hospitals, long-term care hospitals, and small and rural hospitals)

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Supplemental Payments– Private hospitals:

Medi-Cal general acute days: $640.46/dayMedi-Cal acute psychiatric: $485/dayAdditional grants for Medi-Cal high acuity daysOutpatient services: Reimbursed up to the Medicaid Upper Payment Limit

– Different rates for designated public hospitals and non-designated public hospitals



Authorizes $1.2 billion in increase capitation payments to Medi-Cal managed health care plans– Legislation directs Department of Health Care

Services (DHCS) to determine how to allocate increased capitation payments

– Legislation directs managed health care plans to expend 100% of the increased funds on hospital services

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DHCS implemented the fee program Oct. 1, 2010– Payment of the fees due in 4 installments

Oct. 8, Nov. 1, Nov. 19, Dec. 13– Payments to hospitals follow approximately

2 weeks laterMedi-Cal managed health care plan portion implemented separately



The program is expected to bring in $2.65 billion in new federal funds for California hospitals, as well as $560 million for the state to provide health care coverage for children

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S.B. 208 & A.B. 342: Medi-Cal Demonstration Project

Sponsor: Steinberg (D) & Perez (D)Proponents (prior to amendments):– Aging Services of California– AIDS Healthcare Foundation– Association of California

Healthcare Districts– California Association of Public Hospitals– Children’s Specialty Care Coalition


Opponents (prior to amendments):– Alzheimer’s Association– AARP– California Primary Care Association– Corporation for Supportive Housing– Congress of California Seniors– Disability Rights California– Western Center on Law & Poverty

S.B. 208 & A.B. 342: Medi-Cal Demonstration Project (cont.)

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Federal law allows states to submit applications for Demonstration Projects in the Medicaid program – The Secretary of the Department of Health and

Human Services may waive certain provisions of Medicaid law with respect to the Demonstration Project

– Have been used by many states to expand coverage in their Medicaid program

S.B. 208 & A.B. 342: Current Law


Medicaid covers various categories of the financially needy, but does not cover individuals who do not meet non-financial criteria, such as disability, age, foster child, etc. – The uncovered group is sometimes called the

“childless adult” population, which has traditionally not been eligible for Medicaid regardless of financial need

S.B. 208 & A.B. 342: Current Law (cont.)

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Federal health reform requires state Medicaid programs to cover this population with incomes up to 133% of the FPL, beginning January 1, 2014– May phase in coverage for this group prior to

2014



Since 2005, many Counties in California have operated a Coverage Initiative pursuant to a federally-approved Demonstration Project– Allows participating Counties to receive a limited

amount of federal matching funds for the provision of services to certain individuals that are not eligible for Medicaid

The previous Demonstration Project was due to expire on August 31, 2010– DHCS directed by the legislature to apply to CMS

for a new Demonstration Project


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California’s Medi-Cal program utilizes managed care health plans to control costs and coordinate benefits for many enrollees– Different models in different Counties– In many Counties, certain categories of

individuals are required to enroll with a plan to receive Medicaid benefits

– In some Counties, seniors and persons with disabilities (SPDs) are not required to enroll, but may do so voluntarily



S.B. 208 & A.B. 342: New Law

CMS approved California’s “Bridge to Reform”Demonstration Project on November 2, 2010

– SB 208 and AB 342 were contingent on approval from CMS of the Demonstration Project

If certain savings are achieved and milestones are met, the Demonstration Project will bring in approximately $10 billion dollars of federal funds over a 5 year period

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Designed to:

– Expand coverage in advance of 2014

– Allow California and its safety net providers to transition to the requirements that will apply in 2014 as part of federal health care reform

– Make improvements to health care delivery for the Medicaid population

S.B. 208 & A.B. 342: New Law (cont.)


Counties have the option to develop Coverage Expansion and Enrollment Demonstration (CEED) projects for the “childless adult” population– Participating Counties may enroll resident adults

between 19 and 64 with family income less than 200% of the FPL, who are not pregnant and are not eligible for Medicaid or CHIP

– Successor to the Coverage Initiative

S.B. 208 & A.B. 342: New Law (cont.)

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CEED projects may receive capitated rates for enrollees– May use a limited network – No state General Fund contribution

Enrollees will receive a core benefit package – Will be provided with a medical home

Projects currently being developed

S.B. 208 & A.B. 342: New Law (cont.)


DHCS may require the SPD population to enroll with a managed care plan to receive Medicaid benefits– May enroll in existing Medi-Cal managed care

plans, if the plans meet certain criteria related to treating this population

– DHCS must ensure that plans are available in a County that meet the requirements necessary to enroll SPDs

S.B. 208 & A.B. 342: New Law (cont.)

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Various statutory protections enacted for the SPD population– Facility site review tool for assessing

accessibility to provider sites for the disabled– Develop individualized care plans based on a

risk assessment survey for new enrollees – Medical homes

S.B. 208 & A.B. 342: New Law (cont.)


New Delivery System Reform Incentive Payments (DSRIP) are available to California’s public hospitals– Matched with federal dollars– May be used for

Infrastructure Development (e.g., increase primary care capacity; introduce telemedicine)

S.B. 208 & A.B. 342: New Law (cont.)

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Innovation and Redesign (e.g., expand medical homes or chronic disease management)Population-focused Improvement (e.g., improve care management and outcomes for certain chronic conditions, reduce readmissions)Urgent Improvements in Care (hospital specific initiatives in areas where major improvement in care is possible and measurable)

S.B. 208 & A.B. 342: New Law (cont.)


S.B. 208 & A.B. 342: New Law (cont.)

To receive DSRIP funds, public hospitals must– Meet conditions to be agreed upon by CMS,

including a specific scorecard process and metrics for evaluating the project

– Provide the non-federal share of the incentive payments

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S.B. 208 & A.B. 342: New Law (cont.)

State is required to develop and submit to CMS an “Affordable Care Act Transition Plan” by July 1, 2012– Outline how California will transition individuals

enrolled under the Demonstration Project to coverage under Medicaid in 2014

– Information about the services that will be available in 2014

– Submit by July 1, 2012– Must meet milestones related to the transition,

subject to reduction of federal funds


S.B. 1399: Medical Parole

Sponsor: Leno (D)Proponents:– Federal Prison Health Care Receiver– California Catholic Conference– California State Department of Corrections and

Rehabilitation – California State Sheriffs Association – Chief Probation Officers of California – Crestwood Behavioral Health, Inc. – Life Support Alliance – Service International Employee's Union, Local

1000

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S.B. 1399: Medical Parole (cont.)

Opposed By:– Crime Victims United of California – Taxpayers for Improving Public Safety



The Secretary of the California Department of Corrections and Rehabilitation (CDCR) or the Board of Parole Hearings, or both, may recommend to the court that a prisoner’s sentence be recalled if:– The conditions under which the prisoner would

be released or receive treatment do not pose a threat to public safety; and

– The prisoner is terminally ill and will die within six months, as determined by a physician employed by the CDCR; or

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– The prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour total care



The court shall have the discretion to resentence or recall if the court finds these criteria are metDoes not apply to a prisoner sentenced to death or a term of life without the possibility of parole

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S.B. 1399 New Law

The Board of Parole Hearings will grant a prisoner a medical parole if:– The Board determines that the conditions under

which a prisoner would be released would not reasonably pose a threat to public safety, and

– The head physician of the institution where the prisoner is located determines that the prisoner is permanently medically incapacitated and requires 24-hour care, and the incapacitation did not exist at the time of sentencing


S.B. 1399 New Law (cont.)

Does not apply to any prisoner sentenced to death or life in prison without possibility of parole or to any inmate who is serving a sentence for which parole is prohibited by any initiative statuteDoes not alter or diminish the rights conferred under the Victim's Bill of Rights Act of 2008: Marsy's Law

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Medical parole hearings are to be conducted by two-person panels consisting of at least one commissionerIn the event of a tie vote, the matter is referred to the full board for a decision



The Board of Parole Hearings or the Division of Adult Parole Operations may:– Impose any reasonable conditions on prisoners

subject to medical parole supervision, including the requirement that the parolee submit to electronic monitoring

– Require the parolee to submit to an examination by a physician selected by the board for the purpose of diagnosing the parolee's current medical condition

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The CDCR shall ensure that the prisoner has applied for any federal entitlement programs for which the prisoner is eligibleIf the prisoner is eligible for Medi-Cal– Hospitals must first bill Medi-Cal– The CDCR will reimburse County public hospitals

for certain costs associated with the prisoner– The CDCR will also, among other things, directly

provide for certain allowable costs that cannot be claimed as Medi-Cal expenditures



If a patient does not qualify for Medi-Cal:– The CDCR shall establish contracts with

appropriate medical providers and pay allowable costs (if the individual is unable to pay the cost of their medical care)

– The CDCR shall directly provide, or provide reimbursement for, services associated with public guardianship

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S.B. 608: Seismic Safety

Sponsor: Alquist (D)Proponents:– Stanford Hospitals and Clinics (co-sponsor)– Stanford University (co-sponsor) – City of Palo Alto

Opposed By:– The California Nurses Association (CNA)



Establishes seismic standards for hospital buildings– Enacted after 1994 Northridge earthquake

Classifies hospitals based on risk of collapse/damage in a strong earthquake– SPC-1 (most risk): Must be rebuilt or

retrofitted by January 1, 2008, or removed from acute care services

– SPC-2: Must be brought into compliance by 2030 or removed from acute care services

– Remainder: May be used without restriction beyond 2030

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5-year extensions are available for SPC-1 hospitals that meet certain requirements– Extend the deadline to January 1, 2013

Hospitals receiving the 5-year extension may receive an additional 2-year extension (to January 1, 2015) if certain conditions are met (e.g., reasonable progress made and factors beyond hospital’s control make it impossible to comply with deadline)


S.B. 608: New Law

Provides for a new extension of the January 1, 2013 seismic deadline for retrofitting or replacing an SPC-1 building for hospitals that are able to document that a local planning delay will cause them to miss the deadline. – Extension = 1-year increments up to 3 years

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To apply for the extension, hospitals must submit:– The original schedule of the project as originally

anticipated and the schedule of the project as currently projected

– A timeline for the submission of documents to the local planning authority or jurisdiction



– Documentation that the local planning authority for the project does not grant approvals prior to November 1, 2010, where the hospital filed the local application by January 1, 2008

– A proposed construction timeframe demonstrating the completion of the project once the permit isissued

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The Office of Statewide Health Planning and Development (OSHPD) grants extensions based on an evaluation of several factors, including whether:– Delays were caused by the local planning

authority– Construction will have begun no later

than January 1, 2013



– The hospital submitted a plan to OSHPD by January 1, 2009

– The project received a building permit no later than January 1, 2012

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OSHPD may grant an additional extension of up to 2 years (beyond the 3 years) if, among other things:– The project will result in all buildings at

the facility complying with the 2030 standards by the completion of the project

– The construction timelines submitted were determined to go beyond 3 years from the date the building permit was issued



– No acute care services will be provided in any SPC-1 building during the extension

– The hospital demonstrates that it has and maintains life safety systems in all acute care patient areas that do not depend on, or are routed through, any SPC-1 building

– The hospital demonstrates that no SPC-1 building poses a structural risk to any adjoining building that is used for acute care services, or mitigates the risk by 2015

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OSHPD may revoke an extension if work is abandoned or suspended for six months or longer, or for failure to comply with the conditions of the extension or falsification of informationHospitals applying for an extension must pay OSHPD an additional fee


S.B. 1237: Radiation Control

Sponsor: Padilla (D)Proponents:– Consumer Attorneys of California (sponsor)– AARP – Breast Cancer Fund – California Nurses Association – Children's Advocacy Institute – Congress of California – Consumer Federation of California – Medical Imaging and Technology Alliance – Healthcare Solutions Institute – Philips Healthcare – Siemens

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S.B. 1237: Radiation Control (cont.)

Opposed By:– None on record



Under the Radiation Control Law, Department of Public Health’s Radiologic Health Branch– Licenses radioactive materials– Registers X-ray producing machines– Certifies X-ray and radioactive material uses– Inspects facilities that use radiation, and– Investigates radiation incidents

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S.B. 1237: New Law

Commencing July 1, 2012, the law requires a person who uses a CT X-ray system for human use to record the dose of radiation on every CT study produced during a CT examination– Applies to CT systems capable of calculating and

displaying radiation dose– Facility must electronically submit each CT study and

protocol page to electronic picture archiving and communications system

– Displayed dose of radiation must be verified annually by a medical physicist to ensure that doses are within 20 percent of true measured dose



Commencing July 1, 2013, facilities that furnish CT must be accreditedAccreditation agency must be:– Approved by CMS– Approved by the California Medical Board– The State Department of Public Health

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Health facilities must report to DPH:– Certain repeated CT examination doses– CT X-ray irradiation of an unintended body part if

the dose exceeds certain thresholds– Certain doses to an embryo or fetus in a known

pregnant individual unless approved by a physician



– Unanticipated functional damage to an organ or a physiological system, hair loss, or erythema, as determined by a physician

– Therapeutic ionizing irradiation of the wrong individual, or wrong treatment site

– Doses from therapeutic ionizing radiation that differ from the prescribed dose by 20 percent or more

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If a reportable event occurs, then:– The facility must provide notification to DPH and

the referring physician no later than 5 business days after a discovery

– The facility must provide written notification to the patient no later than 15 business days after discovery


A.B. 278: Health Information Exchange Demonstration Projects

Sponsor: Monning (D)

Proponents:

– California Office of Health Information Integrity

Opponents:

– None on record

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The federal HITECH Act authorized funding for health information technology and to establish health information exchange demonstration projects – Part of the American Recovery and

Reinvestment Act (the “Stimulus Package”)California established the Office Health Information Integrity (CalOHII) within the Department of Health and Human Services– Directed to apply for federal funds for health

information technology and exchange


A.B. 278: New Law

Authorizes CalOHII to establish and administer demonstration projects– Up to 4 per year– May issue regulations for health information

exchange participants and demonstration projects

CalOHii will assist applicants in soliciting federal funds– Help applicants define the scope of the project– No State General Funds are to be spent

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A.B. 278: New Law (cont)

Purpose of Demonstration Projects– Identify barriers to implementing

health information exchanges– Test potential security and privacy policies for

the safe and secure exchange of health information, including, but not limited to, issues related to access to, and storage of, individual health information

– Identify and address differences between state and federal laws regarding privacy of health information


A.B. 278: New Law (cont)

Potential projects– Policies and practices related to patient

consent, informing, and notification– New technologies and applications that

enable the transmission of protected health information, while increasing privacy protections

– Implementation issues encountered by small solo health care providers as a result of exchanging electronic health information

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Criteria for approval– Areas critical to building consumer trust and

confidence in the health information exchange system

– Support the exchange of information critical to meeting federal “meaningful use” provisions

– Areas recommended by the California health information exchange consumer and industry stakeholder advisory process


Shirley P. Morrigan, Esq.Foley & Lardner LLP555 South Flower, #3500Los Angeles, CA 90071tel: (213) 972-4668fax: (213) 486-0065cell: (310) 488-8788email: [email protected]

Richard K. Rifenbark, Esq.Foley & Lardner LLP555 South Flower, #3500Los Angeles, CA 90071tel: (213) 972-4813fax: (213) 486-0065-0065email: [email protected]

Anil Shankar, Esq. Foley & Lardner LLP555 South Flower, #3500Los Angeles, CA 90071tel: (213) 972-4584fax: (213) 486-0065email: [email protected]

Presenters