Steps in the NH Legislative Process A Case Study: SB 532- Relative to Prior Authorization for Substance Use Treatment 1 By Jim Monahan, The Dupont Group June 21, 2016
2 The Bill Docket
A Bill is Born The Numbers and Letters Title Sponsor(s) Committee referral Analysis Body of the bill RSA or session law? 3
The Public Hearing February 11, 2016 In NH, every piece of legislation introduced gets a public hearing. SB 532 was referred to the Senate Health & Human Services Committee. The hearing was held in the Legislative Office Building (LOB) on February 11. Testimony from bill sponsors, other legislators, state agencies and the public was heard. This statement supporting the bill was submitted by New Futures: http://newfutures.org/sites/default/files/issues/attachments/nf%20prior%20author ization%20testimony%20to%20senate%20hhs.pdf 4
Bill Sponsor s Press Statement On February 11, prime sponsor of SB 532 Sen. Nancy Stiles made this statement to the Hampton Patch: As we heard from many individuals who testified today and during the Joint Task Force, time is of the essence when those suffering from a heroin or opioid addiction decide to seek treatment, she said. The bill we introduced today would eliminate one potential barrier for those seeking treatment by removing insurer s prior authorization requirement, which could take days or weeks. This bill would standardize the preauthorization process to follow the American Society of Addiction Services (ASAM) for substance use disorder inpatient services among all providers. 5
Senate H&HS Executive Session March 3, 2016 After the public hearing, the Senate H&HS Committee scheduled an executive session to vote on SB 532 and any amendments. No public testimony was accepted at this session. The committee recommendation on SB 532 was Ought to pass with amendment the full Senate adopted this on March 10. 6
Senate Finance Committee Because it had a fiscal impact, SB 532 was then referred to the Finance Committee. Senate Finance held a public hearing on March 16 and voted to adopt another amendment to SB 532. The Finance Committee recommendation of Ought to pass with amendment was sent to the full Senate for action on March 24. 7
The Floor Debate & Floor Vote March 24, 2016 The full Senate adopted the proposed Finance Committee amendment to SB 532 on a voice vote. In addition, a floor amendment was offered by prime sponsor Sen. Stiles. SB 532 was then passed with both the committee and floor amendments, on a voice vote. 8
Crossover March 24, 2016 The Governor issued this statement at crossover: For Immediate Release - Governor Hassan's Statement on Senate Passage of Bill to Continue Streamlining Access to Treatment 9 CONCORD After the New Hampshire State Senate passed Senate Bill 532, relative to prior authorization for substance abuse treatment, Governor Maggie Hassan issued the following statement: "Earlier this year, we took an important step forward to strengthen treatment in our comprehensive approach to combat the heroin and opioid crisis, passing expedited, bipartisan legislation that streamlined access to treatment for outpatient substance misuse treatment services. This bipartisan bill builds on those efforts, extending that same streamlined access for inpatient substance misuse treatment services, and I hope that the House will follow suit and send this bill to my desk as quickly as possible."
House Commerce Committee SB 532 was introduced and referred to the House Commerce Committee on March 29, 2016. The Public Hearing in the House Commerce Committee was held on April 14, 2016. The bill then was sent to the Health and Insurance Subcommittee, which held work sessions on April 19 and May 3. Members of the subcommittee: Reps. Jones, Butler, Hannon, Luneau and Hunt 10
House Commerce Committee 11 The subcommittee recommended OTP/am to the full Commerce Committee. However, the full Committee was not unanimous at the Executive session on May 4, 2016: Majority Committee Report: Ought to Pass with Amendment #2016-1778h (NT) for 05/11/2016 (Vote 13-7; RC) HC 29 P. 16 5/5/2016 H Minority Committee Report: Inexpedient to Legislate HC 29 P. 16 The Commerce Committee sent SB 532 to the House floor with a split report and two blurbs one for the 13 member majority, the other for the 7 member minority:
The Blurbs SB 532-FN, relative to prior authorization for substance abuse treatment. MAJORITY: OUGHT TO PASS WITH AMENDMENT. MINORITY: INEXPEDIENT TO LEGISLATE. 12
The Blurbs 13 Rep. John Hunt for the Majority of Commerce and Consumer Affairs. A bipartisan majority of the committee believes that this bill will make very significant pro-patient improvements to NH s laws regarding prior authorization for inpatient substance use treatment, and will dramatically expedite the approval of effective treatment that is most likely to lead to recovery. It also reflects a very fair compromise reached by the stakeholders and substantial concessions by the insurance carriers. First, the bill defines clinical stabilization services and short-term inpatient withdrawal management. Furthermore, for those carriers that require prior authorization for inpatient substance use disorder services, this bill requires each carrier to either a) grant to the patient 24 hours of inpatient care without prior authorization while the patient s provider and carrier determine an appropriate care plan, or b) have a 24/7/365 hotline that the patient s treating clinician can call to get a medical necessity determination and the carrier s assistance with patient placement. Under this second option, the carrier must provide a prior authorization decision as soon as practicable, but no more than 6 hours after receiving the treating clinician s clinical rationale consistent with the American Society of Addiction Medicine (ASAM) criteria adopted per SB 576 which was adopted earlier this Session. These new requirements for carriers will provide significant benefits to NH residents in need of prompt admission for inpatient substance use treatment. These requirements do not exist in current law today and directly address concerns that have been raised. The 6-hour turn around is also a very significant concession made by the carriers, and is even lower than the 12-hour turn around in the Senate-passed version of this bill. While most prior authorization requests are currently granted immediately, current NH law allows for up to a 72-hour turnaround time and up to a 24-hour turn around time in emergent situations. Thus, this bill now cuts the statutory prior authorization turn around time down by as much as 75%-92%. Importantly, this bill does not include a new mandate sought by a minority of the committee that would require carriers to pay for inappropriate and ineffective services delivered to the patient during the turn around period. However, the majority of the committee strongly believes that if the prior authorization request is not granted due to the requested treatment being inconsistent with ASAM criteria, then there should not be a new mandate for carriers to pay for inappropriate services. The legislature should not be passing new mandates that create perverse incentives and unintended consequences, including rewarding providers who fail to appropriately apply the nationally-accepted standard of ASAM criteria, putting upward pressure on insurance premiums by requiring carriers to pay for inappropriate treatment, exacerbating the treatment capacity shortages that already exist in NH s substance use disorder inpatient care system, and undermining the critical role that prior authorization plays in ensuring patient safety and managing health care costs. The committee thoroughly vetted this type of new mandate, and the majority of the committee soundly rejected it. This bill as amended by the majority will provide significant improvements and many important benefits to NH residents who are in need of substance use treatment. Vote 13-7. Rep. Joseph Hannon for the Minority of Commerce and Consumer Affairs. The committee debate on this bill centered on a single word change; which, in the opinion of the minority, had the unfortunate result of completely undercutting the purpose of this bill. The majority agreed to a request from the insurance carriers to change the word on lines 13-14 on page 2, from until to after. In short, this change has the result of forcing individuals in need of acute substance use disorder treatment to wait for up to 6 hours for health insurance carrier approval to access clinically appropriate services. The minority believes this change must be undone. The committee heard testimony from numerous stakeholders that, when an individual is at the point of agreeing to seek help for their addiction, the window of opportunity is often short - sometimes lasting less than 45 minutes. It is important to reiterate that the purpose of this bill is to ensure that individuals have immediate preliminary access to services, so clinically appropriate treatment can be obtained without delay. Furthermore, this bill requires treating clinicians to make medical necessity determinations using American Society of Addiction Medicine criteria before services can be rendered. The majority s argument that these criteria can be interpreted differently by different providers and, therefore, the carrier must have the ability to review medical necessity through a prior authorization is well taken, but falls short. When reviewing opioid claims for substance use disorder treatment services from 2014 to 2015, the New Hampshire Insurance Department found that of 11,650 total claims, the carrier s specialist agreed with the treating provider s assessment 99.54% of the time, or in 11,596 of those cases. The majority would have you believe that the carrier s interest in preventing 56 cases of disagreement on treatment criteria is more valuable than providing immediate access to critically necessary services for more than 11,600 people. Given the overwhelming rate at which the carriers ultimately agree with the treating clinician s assessment, it is clear to the minority that requiring prior authorization for these services is an artificial, and unnecessary, barrier to treatment. The immediacy of serving this population, given the risk of overdose and death, should not be overlooked. New Hampshire is facing an epidemic, and providing for immediate access to services is one important way to stem the tide of overdose deaths. As one father said, a carrier s lost opportunity to manage care is nothing compared to a parent s loss of a child. Changing back the word after to until would remove a critical barrier to treatment, permitting immediate access to critical services for tens of thousands suffering in New Hampshire. This change is simply good policy.
House Floor Action March 11, 2016 14 There was a spirited debate on SB 532 on the House floor: The Committee Amendment #2016-1778h: Amendment Adopted on a Division Vote (no names recorded) 274-66. A floor amendment from the minority of the Committee #2016-1920h (Rep. Hannon) was then offered: Amendment Adopted on a roll call vote RC 210-139. The bill finally passed with both amendments Ought to Pass with Amendment 1778h and 1920h: Motion Adopted, Voice Vote. There was no referral to a second committee in the House.
To Concur Or Not Concur? The Senate Re-Takes Control of the Bill SB 532 went back to the Senate on May 19 for concurrence with the House amended version. Senator Sanborn moved to non-concur. The motion failed, 8-16. Senator Stiles moved to concur. Passed on a voice vote 15
On To The Governor June 3 & 6, 2016 During the enrolling process, two minor amendments were added to SB 532 and adopted by House and Senate: 6/3/2016H Enrolled Bill Amendment #2016-2027e: AA VV 6/6/2016S Enrolled Bill Amendment #2016-2027e Adopted, VV, (In recess of 06/01/2016); SJ 20 SB 532 is on the Governor s Desk now with these options: The bill will be signed into law. The bill will become law without the Governor s signature. The bill will be vetoed. 16
Next Steps Although there is no specific rulemaking referenced in SB 532, the NH Department of Insurance has this authority over the section of law it will amend: 420-J:12 Rulemaking Authority. The commissioner may adopt such rules, under RSA 541-A, and issue such orders as may be necessary to carry out the purposes and provisions of this chapter. How the Administrative Rules process works will be addressed in a later session. 17
18 Questions?