AB 369 (Huffman) Vetoed

Friday, October 5, 2012 | 0

Assemblyman Jared Huffman found out too late that his vote in favor of SB 863 helped seal the doom of his own bill, AB 369, which was intended to put an end to the merciless use of "step therapy," the method favored by insurance companies to restrict access of patients to  medications prescribed by their personal physicians.

When Gov. Brown signed SB 863 into law, the light went out not only for AB 1687 (Fong) but also for AB 369 (Huffman). Brown's veto message of AB 1687 said that the bill wasn't necessary because SB 863 was now the law. Both bills passed the Legislature on a bipartisan basis, but both bills were vetoed by Brown. In this piece, we'll discuss AB 369, which this writer supported.

"Step therapy" is the process by which patients are required by insurance companies, HMOs, PPOs, or others to try specified generic medications before they're allowed to try better, newer or more expensive medications that may have actually been prescribed by their treating doctors. The purpose is cost control, even if patients are harmed in the process.

In his veto message for AB 369, Brown acknowledged that "this bill would prohibit a health plan or insurer from requiring a patient to try and 'fail' more than two medications before allowing a patient to have the pain medication prescribed by his or her doctor." In fact, the part about "two medications" was already a compromise, but that wasn't enough for the insurance companies, health plans or Brown, who is seeking their support for other issues.

In the veto message, the governor used one of the worst aspects of SB 863 to justify his veto decision against AB 369. Here's what he said: "Independent medical reviews are available to resolve differences in clinical judgment when they occur, even on an expedited basis."

Keep in mind that in workers' comp, the names of the independent medical reviewers are supposed to be kept secret. Keep in mind that in the private plans, the decision means that patients will be obliged to rely on medications that their personal physicians had purposefully not prescribed.

Brown said that "any limitations on the practice of  'step-therapy' should better reflect a health plan or insurer's legitimate role in determining the allowable steps." In other words, we're told that the health plan's cost-control panel has a "legitimate role" in overruling the strictly medical decisions of our personal physicians. That's the law that Brown favors. Moreover, had AB 369 become law, it would have run counter to the aims and objectives of SB 863, which puts anonymous and often non-California licensed doctors who have not interviewed or examined the patients in control of properly licensed treating physicians who've actually interviewed and examined the patients.

Starting Jan. 1, 2013, an Independent Medical Review system will replace the current Utilization Review (UR) system. The chief differences are that the IMR doctors will have their names protected and will only be able to be challenged for bias, fraud or conflict of interest, a challenge that may be difficult to undertake if the doctors' names are protected. The current system of UR is subject to challenge in court.

Brown's veto of AB 369 is harmful to patients and is favorable to the financial interests of the insurance companies and health plans. IMR doctors and their employers should be subject to challenge in court. Brown's veto prevents lawyers from using AB 369 to litigate against the restrictive treatment provisions incorporated into SB 863.

Huffman joins Fong in that both legislators cast incompatible votes and helped in the downfall of their own respective bills. The master legislator in this case turns out to be Brown. Wie Schade (too bad).

Dr. Robert L. Weinmann is a past president of the Union of American Physicians and Dentists who maintains his private practice in neurology and pain management in San Jose. This column was reprinted with his permission from his Politics of Healthcare blog.