Legislation

Legislative Update – August 18, 2022

From HHP Legislative Advocate, Bryce Docherty

Below is a summary and update of specific bills and other advocacy efforts of interest. 

ADVOCACY UPDATE 

SB 184 (Committee on Budget) – 10% Medi-Cal Provider Rate Cut Restoration: 

On Thursday, June 30, 2022, Governor Gavin Newsom, signed the 2022-2023 State Budget that took effect on Friday, July 1, 2022. This budget is historic for two reasons. First, it’s the largest State Budget in history at just north of $300 billion and takes into consideration a budget surplus of about $60 billion. 

Health care took center stage in the budget as proposed by Governor Newsom in January and the final agreement made between Newsom and the Legislature. 

Most notably is a big win hearing aid dispensers (HADs) in California treating Medi-Cal patients. California HADs will receive a 10% Medi-Cal provider rate increase effective July 1, 2022. This is a restoration of the 10% Medi-Cal provider rate cut implemented by then Governor Brown in 2011 by way of AB 97. 

AB 97 (Chapter 3, Statutes of 2011) required the California Department of Health Care Services to reduce most Medi-Cal provider payments by 10%, with limited exceptions. Since that time, certain AB 97 provider payment reductions have been restored. 

Governor Newsom’s 2022 State Budget proposal in January restored the Medi-Cal 10% provider rate reductions for eight provider types based on COVID-19 Pandemic impacts and the DHCS quality and equity goals—nurses of all types, alternative birthing centers, audiologists and hearing aid dispensers, respiratory care providers, select durable medical equipment providers, chronic dialysis clinics, non-emergency medical transportation providers, and emergency medical air transportation providers. 

The Budget proposal included fee-for-service costs of $20.2 million ($9 million General Fund) in 2022-23 and $24 million ($10.7 million General Fund) annually thereafter for elimination of these rate reductions. 

The final agreement between the Newsom and the Legislature on the 10% Medi-Cal rate restoration only included 31 different provider types and maintained the 10% rate restoration for HADs. 

The Joint Legislative Budget agreement between the Assembly and Senate included a proposed restoration for all Medi-Cal providers at a State Fund cost of $200 million. Of that total, $78 million would have restored the 10% Medi-Cal provider rate cut for physicians of all types. 

At the end of the day, Governor Newsom was only willing to fund an additional ongoing state budget obligation of $5 million for the Medi-Cal restoration. According to the Chief Consultant for the Senate Budget Subcommittee on Health: 

“Yes, scaled back significantly, to only $5m GF. Mostly smaller providers exempted, but the bigger ones (including docs) still subject. Admin was really opposed to ongoing spending increases, including this one.” 

HHP worked hard to keep HADs in this rate restoration proposal and final budget agreement. Albeit not a significant Medi-Cal rate increase, it does send a symbolic message that the Newsom Administration values the role HADs play in the larger healthcare delivery system in California, and the State Medi-Cal Program in particular. 

HHP POSITION: SUPPORT 
STATUS: Signed into law by Governor Newsom on June 30, 2022 

AB 2686 (Berman): SLPAHAD Board Sunset Review: 

This bill extends the sunset date of the Speech-Language Pathology, Audiology, and Hearing Aid Dispensers Board (Board) by four years, until January 1, 2027, and makes additional changes to the Speech-Language Pathologists and Audiologists and Hearing Aid Dispensers Licensure Act stemming from the recent sunset review oversight for the Board. 

Recent amendments to the bill would have reconstituted the majority vote and quorum threshold for the Hearing Aid Dispensers Committee (HADC) to only three members. The HADC is currently chaired by HAD Todd Borges and made up of two HADs, two audiologist, and two public members (one of which must be the ENT board member). No other committees of the Board are prescribed in statute. Due to the lack of an HAD appointment by the Governor to the Board, this scenario would have allowed the HADC to essentially recommend policy to the full Board regarding HAD licensure issue and consumer protection provisions without any meaningful input from HADs. 

The reason why the HADC has not had a quorum is because of the chronic lack of gubernatorial appointments. Governor Newsom STILL must fill the last HAD vacancy on the Board. Currently of a nine-member Board ONLY one HAD has been appointed by Governor Newsom. 

The solution (i.e., workaround) originally proposed in AB 2686 (Berman) was misguided and does a disservice to consumers being treated by licensed HADs. Essentially the Board committee dedicated to guiding policy related to HADs will have very little, if any, input from the HAD profession. Of the potential six members of the HADC only two are recognized as actual HADs. Furthermore, under the current structure four members of the HADC should constitute a quorum. 

This committee and the overall Board in general have been VERY partial to the audiologist community and under the original proposal the two audiologist and only ONE additional non-HAD could have guided the policy and licensure requirements for a profession they do not even represent. How would this have protected the public? How was this even rational public policy? These were all arguments that we made to the Assembly and Senate Business and Professions Committees. 

HHP, respectfully adopted an Oppose Unless Amended position on AB 2686 (Berman), as amended on June 29, 2022, and requested striking the most recent amendments to Section 2531.05(d) and/or deleting the HADC from state statute all together. Those amendments were adopted on August 16, 2022, and then HHP moved to a Watch position on the bill. Presumably the Board will create a non-state mandated HADC with appropriate membership of HADs, dispensing audiologists, and public members. This is consistent with the other committees (audiology, speech-language pathology) constituted by the Board. 

The Board has written in Support of the bill and notes, “This bill would ensure the Board is able to continue to do its important consumer protection work until January1, 2027, and would make several clarifying and technical amendments requested by the Board in its Sunset Review report. This bill would also provide the Board with authority to require applicants and licensees to provide their email address, which would allow the Board to quickly and efficiently communicate new information.” 

The California Academy of Audiology (CAA) has written in Support and notes, “The Board’s professional and public members are actively engaged in their duty to ensure the highest and best practices of the professions regulated for the protection of the consumer. The Board’s executive officer brings expertise, focus and a strong commitment to fulfilling the mission of the Board and providing strong support for the Board’s members.” 

Business and Professions Code Section 2531.05 establishes the HADC consisting of two audiologists, two HADs, one public member, and one Otolaryngologist. The Board has been without a quorum for the HADC since January 1, 2021. 

The size of the HADC is unusually large, consisting of six of the Board’s nine total members. The Board’s other committees for the practices of speech-language pathology and audiology consist of three and four members, respectively. Additionally, Business and Profession Code Section 2531.05 is very specific with the membership of the HADC, requiring both licensed audiologist board members, both licensed HAD board members, one public member, and the licensed ENT Board member to serve on the HADC. The lack of quorum is a result of the difficulty the Board has experienced filling one HAD position, one audiologist position, and the ENT position. Most recently, the Board has filled both of those positions with gubernatorial appointments. 

Consumers may be harmed if the Board is unable to address issues related to the HAD profession due to a lack of quorum on the HADC. This lack of quorum forces the entire Board to discuss issues that could be handled by the HADC, limiting the Board’s time to address other important consumer protection issues. 

The Board recommended amending Business and Professions Section 2531.05 to change the membership of the HADC from six members to four members by eliminating one licensed audiologist and the ENT. This change in membership structure would have been supported by HHP and would have most certainly helped the HADC obtain a quorum. 

HHP POSITION: OPPOSE UNLESS AMENDED to WATCH 
STATUS: Pending on the Senate Third Reading File 

SLPAHAD HAD Board Appointment – Clay Gililland, CEO, Sonus Hearing Care Professionals: 

HHP has recruited Clay Gililland to apply for the last vacant HAD position on the Board. The Appointments Office of the Governor Newsom Administration is aware of his pending application and wants to flag it for consideration once submitted. HHP forwarded Clay a description of the Board member roles and responsibilities and the online application the first week of August and to date the application has not been completed nor submitted. 

Emerging Areas and Opportunities: 

Going forward HHP will continue to work with CAA, the Board, and other stakeholders on the TPA issue, device sales tax relief, and ongoing over-the-counter consumer protection issues. HHP has already successfully worked the Board and California Attorney General Rob Bonta this year on an over-the-counter consumer protection alert. Click here to read that alert.