Annual Health Law Review for 2017

• Publication year: 2018
• Author: Long X. Do, Gabriel Ravel, Carol Scott, and H. Thomas Watson*

Annual Health Law Review for 2017

Long X. Do, Gabriel Ravel, Carol Scott, and H. Thomas Watson^*

Long X. Do is Legal Counsel and Director of Litigation at the California Medical Association, where he manages the 45,000-member physician advocacy organization's activities in the courts and regulatory agencies at the state and federal levels.

Gabriel Ravel is the General Counsel for the Department of Managed Health Care, a position he has held since 2014. Before joining the DMHC, Gabriel was Assistant General Counsel at Covered California.

Carol D. Scott is a founding partner of the Law Offices of Carol D. Scott, a boutique law firm specializing in health care and business law. Her practice focuses on advising various types of health care providers on business, regulatory, transactional, fraud, and abuse issues; HIPAA security and privacy issues; contracts, sales, and acquisitions; as well as licensing, accreditation, and bioethics issues. She is Co-Vice Chair of Legislation for the Health Law Committee of the State Bar of California, is the chair of the Beverly Hills Bar Association Health Law Committee and is a long standing member of the Children's Hospital Los Angeles Bioethics Resource Committee.

H. Thomas Watson is a partner at Horvitz & Levy LLP, and a California State Bar Certified Appellate Specialist. He is a past Chair the State Bar's Health Law Committee, and its current Litigation Vice-Chair. He has authored numerous articles and is a frequent lecturer on health law topics.

Activity in the California health care sector continued to move at a fast pace in 2017, despite the upheaval and uncertainty in the first year of a controversial, new presidential administration that vowed to dramatically reshape existing health care policies and systems. In some respect, the California Legislature (Legislature) took action in direct response to attacks on the Affordable Care Act and Covered California, California's individual private insurance exchange. The Legislature also enacted numerous new laws that furthered ongoing efforts to address rising health care costs and decreasing access to care, to battle America's opioid epidemic, and to address public health concerns. The California Supreme Court decided five important health care cases, while California Courts of Appeal continued to establish precedent in most major areas of the health care arena. Two of California's state regulators, the Department of Managed Health Care (DMHC) and the California Department of Insurance (CDI), kept busy promulgating new regulations to carry out the state's complex system of health care laws.

I. Notable Legislation

A. Health Insurance

1. Assemb. B. 156 (Cal. Stats. 2017, ch. 468). This new law expands the annual enrollment period for individual health benefit plans offered in California, applicable to policy years beginning on or after January 1, 2019. Health plans for individuals sold through the Covered California insurance exchange must have enrollment periods from November 1 through December 15 (consistent with federal law), but Assembly Bill 156 establishes special enrollment periods that would effectively double the federally-mandated period, from October 15 of the preceding calendar year through January 15 of the benefit year. Other health plans sold outside of Covered California similarly must have annual enrollment periods from October 15 of the preceding calendar year through January 15 of the benefit year.

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2. S.B. 133 (Cal. Stats. 2017, ch. 481). Also known as "Jasmine's Law," Senate Bill 133 seeks to protect consumers undergoing treatment for serious or chronic conditions when their coverage changes because the health insurer stops offering individual coverage in California. Existing law protects consumers in such situations who have coverage through employer-sponsored plans, by imposing strict continuity of care requirements. Senate Bill 133 extends the continuity of coverage provisions to the individual insurance market; requires insurers to notify consumers of their right to continuity of care; and allows patients who need heart transplants to continue their care before and after their surgeries. The law also requires new insurers to pay the patient's healthcare provider even if that provider is not a participating provider in the new plan.

B. Pharmacies and Prescription Drugs

1. Assemb. B. 401 (Cal. Stats. 2017, ch. 548). With Assembly Bill 401, California joins a growing list of states that authorize the practice of "telepharmacy." Telepharmacy connects off-site, licensed pharmacists to remote dispensing pharmacies that are staffed by pharmacy technicians working under the supervision of the licensed off-site pharmacist. Through telepharmacy software, licensed pharmacists can perform drug use review and verify the prescriptions being filled at the remote location, as well as counsel patients in real time. Remote dispensing site pharmacies must be licensed by the California Board of Pharmacy to operate under this new law. Assembly Bill 401 seeks to increase access to pharmacy care by creating an exception to existing law that requires every pharmacy in California to have a licensed pharmacist on site at all times that drugs are being dispensed and prohibits technicians from filling prescriptions unless a pharmacist is on site.

2. Assemb. B. 40 (Cal. Stats. 2017, ch. 607). The Legislature enacted Assembly Bill 40 to expand the use of California's prescription drug management database, known as the Controlled Substance Utilization Review and Evaluation System (CURES), as part of California's ongoing effort to battle the opioid drug crisis. Existing law requires all health care providers who are authorized to prescribe controlled substances to register with and to consult CURES before prescribing Schedule II, III, and IV controlled substances to a patient for the first time and annually for patients who continue a course of narcotic treatment. The mandatory consultation requirement, however, does not take effect until the California Department of Justice (DOJ) certifies that CURES is ready to meet the demands of the new laws. Assembly Bill 40 takes steps to make CURES ready to use by imposing a deadline of October 1, 2018, for the DOJ to make electronic prescription drug records in CURES accessible to providers online or through integration with existing health information technology systems. The law also requires providers' systems accessing the CURES database to meet certain confidentiality and security standards.

C. Professional Licensing

1. S.B. 798 (Cal. Stats. 2017, ch. 775). The Medical Board of California (MBC) must be reauthorized every four years through a legislative sunset review process. Senate Bill 798 extends the MBC's authorization through 2021. Senate Bill 798 also makes significant changes to the jurisdiction and operation of the Medical Practice Act, including: (1) adding licensed midwives to state peer review laws and the Moscone-Knox Professional Corporation Act; (2) eliminating the MBC's authority to approve American Board of Medical Specialties-equivalent boards as alternative bodies for specialist physicians to become board-certified; (3) making the Board of Podiatric Medicine independent of the MBC; (4) imposing new, hefty fines on health facilities and peer...