Representative Steve Eliason proposes the following substitute bill:


1     
MENTAL HEALTH SYSTEMS AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Todd D. Weiler

5     
House Sponsor: Steve Eliason

6     

7     LONG TITLE
8     General Description:
9          This bill addresses mental and behavioral health services in the state.
10     Highlighted Provisions:
11          This bill:
12          ▸     creates, modifies, and repeals definitions;
13          ▸     requires the base budget to include certain appropriations to the Department of
14     Health and the Department of Human Services for insurance plans that contract
15     with the state's Medicaid program for behavioral health services;
16          ▸     requires a health benefit plan to:
17               •     provide coverage for treatment of a mental health condition through
18     telemedicine services if certain conditions are met; and
19               •     reimburse for the treatment at a certain rate;
20          ▸     allows a provider to use any synchronous audiovisual technology that is compliant
21     with the federal Health Insurance Portability and Accountability Act of 1996 for
22     certain treatment through telemedicine services;
23          ▸     prohibits the Division of Occupational and Professional Licensing from refusing to
24     issue or taking disciplinary action against the occupational license of certain health
25     care providers based solely on the provider seeking or participating in mental health
26     or substance abuse treatment; and
27          ▸     makes technical and conforming changes.
28     Money Appropriated in this Bill:
29          This bill appropriates in fiscal year 2022:
30          ▸     to Department of Health - Medicaid Services, as an ongoing appropriation:
31               •     From Federal Funds, $3,780,000;
32               •     From Expendable Receipts, $340,000; and
33               •     From Medicaid Expansion Fund, $36,000;
34          ▸     to Department of Health - Medicaid Services, as a one-time appropriation:
35               •     From Federal Funds, One-time, ($2,950,000);
36               •     From Expendable Receipts, One-time, ($260,000); and
37               •     From Medicaid Expansion Fund, One-time, ($26,000);
38          ▸     to Department of Human Services - Division of Substance Abuse and Mental
39     Health, as an ongoing appropriation:
40               •     From General Fund, $1,369,100; and
41          ▸     to Department of Human Services - Division of Substance Abuse and Mental
42     Health, as a one-time appropriation:
43               •     From General Fund, One-time, ($1,066,500).
44     Other Special Clauses:
45          This bill provides a special effective date.
46          This bill provides a coordination clause.
47     Utah Code Sections Affected:
48     AMENDS:
49          26-18-405.5, as enacted by Laws of Utah 2015, Chapter 288
50          31A-22-649.5, as enacted by Laws of Utah 2020, Chapter 119
51          58-1-401, as last amended by Laws of Utah 2020, Chapter 289
52          58-31b-401, as last amended by Laws of Utah 2019, Chapter 136
53          58-60-108, as enacted by Laws of Utah 1994, Chapter 32
54          58-61-401, as enacted by Laws of Utah 1994, Chapter 32
55          58-67-401, as last amended by Laws of Utah 2011, Chapter 214
56          58-68-401, as last amended by Laws of Utah 2011, Chapter 214
57          58-70a-401, as enacted by Laws of Utah 1997, Chapter 229
58     ENACTS:
59          58-81-105, Utah Code Annotated 1953
60     Utah Code Sections Affected by Coordination Clause:
61          31A-22-649.5, as enacted by Laws of Utah 2020, Chapter 119
62     

63     Be it enacted by the Legislature of the state of Utah:
64          Section 1. Section 26-18-405.5 is amended to read:
65          26-18-405.5. Base budget appropriations for Medicaid accountable care
66     organizations and mental health plans.
67          (1) [For purposes of] As used in this section:
68          (a) ["ACOs" means accountable care organizations.] "ACO" means an accountable
69     care organization that contracts with the state's Medicaid program for:
70          (i) physical health services; or
71          (ii) integrated physical and behavioral health services.
72          (b) "Base budget" means the same as that term is defined in legislative rule.
73          [(c) "Current fiscal year PMPM" means per-member-per-month funding for Medicaid
74     accountable care organizations under the Department of Health in the current fiscal year.]
75          [(d)] (c) "General Fund growth factor" means the amount determined by dividing the
76     next fiscal year ongoing General Fund revenue estimate by current fiscal year ongoing
77     appropriations from the General Fund.
78          (d) "Mental health plan" means a prepaid mental health plan or a health plan that uses a
79     fee-for-service payment model that contracts with the state's Medicaid program for behavioral
80     health services.
81          (e) "Next fiscal year ongoing General Fund revenue estimate" means the next fiscal
82     year ongoing General Fund revenue estimate identified by the Executive Appropriations
83     Subcommittee, in accordance with legislative rule, for use by the Office of the Legislative
84     Fiscal Analyst in preparing budget recommendations.
85          [(f) "Next fiscal year PMPM" means per-member-per-month funding for Medicaid
86     accountable care organizations under the Department of Health for the next fiscal year.]
87          (f) "PMPM" means per-member-per-month funding.
88          (2) If the General Fund growth factor is less than 100%, the next fiscal year base
89     budget shall include an appropriation:
90          (a) to the [Department of Health for Medicaid] department for ACOs under the
91     department in an amount necessary to ensure that the next fiscal year PMPM for the ACOs
92     equals the current fiscal year PMPM for the ACOs multiplied by 100%[.]; and
93          (b) subject to Subsection (5), to the Department of Human Services for mental health
94     plans under the Department of Human Services in an amount necessary to ensure that the
95     funding for the mental health plans in the next fiscal year equals the funding for the mental
96     health plans in the current fiscal year multiplied by 100%.
97          (3) If the General Fund growth factor is greater than or equal to 100%, but less than
98     102%, the next fiscal year base budget shall include an appropriation:
99          (a) to the [Department of Health for Medicaid] department for ACOs under the
100     department in an amount necessary to ensure that the next fiscal year PMPM for the ACOs
101     equals the current fiscal year PMPM for the ACOs multiplied by the General Fund growth
102     factor[.]; and
103          (b) subject to Subsection (5), to the Department of Human Services for mental health
104     plans under the Department of Human Services in an amount necessary to ensure that the
105     funding for the mental health plans in the next fiscal year equals the funding for the mental
106     health plans in the current fiscal year multiplied by the General Fund growth factor.
107          (4) If the General Fund growth factor is greater than or equal to 102%, the next fiscal
108     year base budget shall include an appropriation:
109          (a) to the [Department of Health for Medicaid] department for ACOs under the
110     department in an amount necessary to ensure that the next fiscal year PMPM for the ACOs is
111     greater than or equal to the current fiscal year PMPM for the ACOs multiplied by 102% and
112     less than or equal to the current fiscal year PMPM for the ACOs multiplied by the General
113     Fund growth factor[.]; and
114          (b) subject to Subsection (5), to the Department of Human Services for mental health
115     plans under the Department of Human Services in an amount necessary to ensure that the
116     funding for the mental health plans in the next fiscal year is greater than or equal to the funding
117     for the mental health plans in the current fiscal year multiplied by 102% and less than or equal
118     to the funding for the mental health plans in the current fiscal year multiplied by the General
119     Fund growth factor.
120          (5) The appropriations provided to the Department of Human Services under this
121     section shall be reduced by the amount contributed by counties in the current fiscal year for
122     mental health plans under the Department of Human Services in accordance with Subsections
123     17-43-201(5)(k) and 17-43-301(6)(a)(x).
124          [(5)] (6) In order for the department and the Department of Human Services to estimate
125     the impact of Subsections (2) through (4) [prior to] before identification of the next fiscal year
126     ongoing General Fund revenue estimate [under Subsection (1)(e)], the Governor's Office of
127     Management and Budget shall, in cooperation with the Office of the Legislative Fiscal Analyst,
128     develop an estimate of ongoing General Fund revenue for the next fiscal year and provide [it]
129     the estimate to the department and the Department of Human Services no later than September
130     1 of each year.
131          Section 2. Section 31A-22-649.5 is amended to read:
132          31A-22-649.5. Insurance parity for telemedicine services -- Method of technology
133     used.
134          (1) As used in this section:
135          [(a) "Telehealth services" means the same as that term is defined in Section
136     26-60-102.]
137          (a) "Mental health condition" means a mental disorder or a substance-related disorder
138     that falls under a diagnostic category listed in the Diagnostic and Statistical Manual, as
139     periodically revised.
140          (b) "Telemedicine services" means the same as that term is defined in Section
141     26-60-102.
142          (2) Notwithstanding the provisions of Section 31A-22-618.5, a health benefit plan
143     offered in the individual market, the small group market, or the large group market [and
144     entered into or renewed on or after January 1, 2021,] shall:
145          (a) provide coverage for:
146          (i) telemedicine services that are covered by Medicare; and
147          [(b) reimburse, at a commercially reasonable rate, a network provider that provides the
148     telemedicine services described in Subsection (2)(a).]
149          (ii) treatment of a mental health condition through telemedicine services if:
150          (A) the health benefit plan provides coverage for the treatment of the mental health
151     condition through in-person services; and
152          (B) the health benefit plan determines treatment of the mental health condition through
153     telemedicine services meets the appropriate standard of care; and
154          (b) reimburse a network provider that provides the telemedicine services described in
155     Subsection (2)(a) at a negotiated commercially reasonable rate.
156          (3) (a) Notwithstanding Section 31A-45-303, a health benefit plan providing
157     [treatment] coverage under Subsection (2)(a) may not impose originating site restrictions,
158     geographic restrictions, or distance-based restrictions.
159          (b) A network provider that provides the telemedicine services described in Subsection
160     (2)(a) may utilize any synchronous audiovisual technology for the telemedicine services that is
161     compliant with the federal Health Insurance Portability and Accountability Act of 1996.
162          Section 3. Section 58-1-401 is amended to read:
163          58-1-401. Grounds for denial of license -- Disciplinary proceedings -- Time
164     limitations -- Sanctions.
165          (1) The division shall refuse to issue a license to an applicant and shall refuse to renew
166     or shall revoke, suspend, restrict, place on probation, or otherwise act upon the license of a
167     licensee who does not meet the qualifications for licensure under this title.
168          (2) The division may refuse to issue a license to an applicant and may refuse to renew
169     or may revoke, suspend, restrict, place on probation, issue a public reprimand to, or otherwise
170     act upon the license of a licensee for the following reasons:
171          (a) subject to the provisions of Subsection (7), the applicant or licensee has engaged in
172     unprofessional conduct, as defined by statute or rule under this title;
173          (b) the applicant or licensee has engaged in unlawful conduct as defined by statute
174     under this title;
175          (c) the applicant or licensee has been determined to be mentally incompetent by a court
176     of competent jurisdiction; or
177          (d) subject to Subsections 58-31b-401(7), 58-60-108(2), 58-61-401(2), 58-67-401(2),
178     58-68-401(2), 58-70a-401(2), and Section 58-81-105, the applicant or licensee is unable to
179     practice the occupation or profession with reasonable skill and safety because of illness,
180     drunkenness, excessive use of drugs, narcotics, chemicals, or other type of material, or as a
181     result of a mental or physical condition, when the condition demonstrates a threat or potential
182     threat to the public health, safety, or welfare.
183          (3) A licensee whose license to practice an occupation or profession regulated by this
184     title has been suspended, revoked, placed on probation, or restricted may apply for
185     reinstatement of the license at reasonable intervals and upon compliance with conditions
186     imposed upon the licensee by statute, rule, or terms of the license suspension, revocation,
187     probation, or restriction.
188          (4) The division may issue cease and desist orders to:
189          (a) a licensee or applicant who may be disciplined under Subsection (1) or (2);
190          (b) a person who engages in or represents that the person is engaged in an occupation
191     or profession regulated under this title; and
192          (c) a person who otherwise violates this title or a rule adopted under this title.
193          (5) The division may impose an administrative penalty in accordance with Section
194     58-1-502.
195          (6) (a) The division may not take disciplinary action against a person for
196     unprofessional or unlawful conduct under this title, unless the division enters into a stipulated
197     agreement or initiates an adjudicative proceeding regarding the conduct within four years after
198     the conduct is reported to the division, except under Subsection (6)(b).
199          (b) (i) The division may not take disciplinary action against a person for unprofessional
200     or unlawful conduct more than 10 years after the occurrence of the conduct, unless the
201     proceeding is in response to a civil or criminal judgment or settlement and the proceeding is
202     initiated within one year following the judgment or settlement.
203          (ii) Notwithstanding Subsection (6)(b)(i), the division may refuse to issue a license due
204     to unprofessional or unlawful conduct that occurred more than 10 years before a request or
205     application for licensure is made.
206          (7) When the division is determining whether to refuse to issue a license to an
207     applicant, or to refuse to renew the license of a licensee, based solely on the criminal
208     conviction of an applicant or licensee, the division shall:
209          (a) provide individualized consideration to the applicant or licensee;
210          (b) determine whether the criminal conviction bears a substantial relationship to the
211     applicant's or licensee's ability to safely or competently practice the occupation or profession;
212     and
213          (c) consider the applicant's or licensee's current circumstances, which may include any
214     of the following:
215          (i) the age of the applicant or licensee when the applicant or licensee committed the
216     offense;
217          (ii) the time that has elapsed since the applicant or licensee committed the offense;
218          (iii) whether the applicant or licensee has completed the applicant's or licensee's
219     criminal sentence;
220          (iv) whether the applicant has completed or is actively participating in rehabilitative
221     drug or alcohol treatment;
222          (v) any testimonials or recommendations from other individuals provided by the
223     applicant or licensee, including a progress report from the applicant's or licensee's probation or
224     parole officer;
225          (vi) other evidence of rehabilitation provided by the applicant or licensee;
226          (vii) the education and training of the applicant or licensee;
227          (viii) the employment history of the applicant or licensee; and
228          (ix) other relevant information provided by the applicant or licensee.
229          Section 4. Section 58-31b-401 is amended to read:
230          58-31b-401. Grounds for denial of licensure or certification and disciplinary
231     proceedings.
232          (1) (a) As used in this section, "licensed" or "license" includes certified or certification
233     under this chapter.
234          (b) A term or condition applied to the word "nurse" under this section applies to a
235     medication aide certified.
236          (2) Grounds for refusal to issue a license to an applicant, for refusal to renew the
237     license of a licensee, to revoke, suspend, restrict, or place on probation the license of a licensee,
238     to issue a public or private reprimand to a licensee, and to issue cease and desist orders shall be
239     in accordance with Section 58-1-401.
240          [(2) If] (3) (a) (i) Subject to Subsection (7), if a court of competent jurisdiction
241     determines a nurse is incapacitated as defined in Section 75-1-201 or that the nurse has a
242     mental illness, as defined in Section 62A-15-602, and is unable to safely engage in the practice
243     of nursing, the director shall immediately suspend the license of the nurse upon the entry of the
244     judgment of the court, without further proceedings under Title 63G, Chapter 4, Administrative
245     Procedures Act, regardless of whether an appeal from the court's ruling is pending.
246          (ii) The director shall promptly notify the nurse in writing of [the] a suspension under
247     Subsection (3)(a)(i).
248          [(3) (a) If] (b) (i) Subject to Subsection (7), if the division and the majority of the
249     board find reasonable cause to believe a nurse who is not determined judicially to be an
250     incapacitated person or to have a mental illness, is incapable of practicing nursing with
251     reasonable skill regarding the safety of patients, because of illness, excessive use of drugs or
252     alcohol, or as a result of any mental or physical condition, the board shall recommend that the
253     director file a petition with the division, and cause the petition to be served upon the nurse with
254     a notice of hearing on the sole issue of the capacity of the nurse to competently, safely engage
255     in the practice of nursing.
256          [(b) The] (ii) Except as provided in Subsection (4), the hearing described in
257     Subsection (3)(b)(i) shall be conducted under Section 58-1-109 and Title 63G, Chapter 4,
258     Administrative Procedures Act[, except as provided in Subsection (4)].
259          (4) (a) Every nurse who accepts the privilege of being licensed under this chapter gives
260     consent to:
261          (i) submitting to an immediate mental or physical examination, at the nurse's expense
262     and by a division-approved practitioner selected by the nurse when directed in writing by the
263     division and a majority of the board to do so; and
264          (ii) the admissibility of the reports of the examining practitioner's testimony or
265     examination, and waives all objections on the ground the reports constitute a privileged
266     communication.
267          (b) The examination may be ordered by the division, with the consent of a majority of
268     the board, only upon a finding of reasonable cause to believe:
269          (i) the nurse has a mental illness, is incapacitated, or otherwise unable to practice
270     nursing with reasonable skill and safety; and
271          (ii) immediate action by the division and the board is necessary to prevent harm to the
272     nurse's patients or the general public.
273          (c) (i) Failure of a nurse to submit to the examination ordered under this section is a
274     ground for the division's immediate suspension of the nurse's license by written order of the
275     director.
276          (ii) The division may enter the order of suspension without further compliance with
277     Title 63G, Chapter 4, Administrative Procedures Act, unless the division finds the failure to
278     submit to the examination ordered under this section was due to circumstances beyond the
279     control of the nurse and was not related directly to the illness or incapacity of the nurse.
280          (5) (a) A nurse whose license is suspended under Subsection [(2),] (3)[,] or (4)(c) has
281     the right to a hearing to appeal the suspension within 10 days after the license is suspended.
282          (b) The hearing held under this Subsection (5) shall be conducted in accordance with
283     Sections 58-1-108 and 58-1-109 for the sole purpose of determining if sufficient basis exists
284     for the continuance of the order of suspension in order to prevent harm to the nurse's patients or
285     the general public.
286          (6) A nurse whose license is revoked, suspended, or in any way restricted under this
287     section may request the division and the board to consider, at reasonable intervals, evidence
288     presented by the nurse, under procedures established by division rule, regarding any change in
289     the nurse's condition, to determine whether:
290          (a) the nurse is or is not able to safely and competently engage in the practice of
291     nursing; and
292          (b) the nurse is qualified to have the nurse's license to practice under this chapter
293     restored completely or in part.
294          (7) The division may not refuse, revoke, suspend, or in any way restrict an applicant or
295     licensee's license under this chapter solely because the applicant or licensee seeks or
296     participates in mental health or substance abuse treatment.
297          [(7) Nothing in]
298          (8) Section 63G-2-206 may not be construed as limiting the authority of the division to
299     report current significant investigative information to the coordinated licensure information
300     system for transmission to party states as required of the division by Article VII of the Nurse
301     Licensure Compact - Revised in Section 58-31e-102.
302          [(8) For purposes of this section:]
303          [(a) "licensed" or "license" includes "certified" or "certification" under this chapter;
304     and]
305          [(b) any terms or conditions applied to the word "nurse" in this section also apply to a
306     medication aide certified.]
307          Section 5. Section 58-60-108 is amended to read:
308          58-60-108. Grounds for action regarding license -- Disciplinary proceedings.
309          [The] (1) Subject to Subsection (2), the division's grounds for refusing to issue a
310     license to an applicant, for refusing to renew the license of a licensee, for revoking, suspending,
311     restricting, or placing on probation the license of a licensee, for issuing a public or private
312     reprimand to a licensee, and for issuing a cease and desist order are under Section 58-1-401.
313          (2) The division may not refuse, revoke, suspend, or in any way restrict an applicant or
314     licensee's license under this chapter solely because the applicant or licensee seeks or
315     participates in mental health or substance abuse treatment.
316          Section 6. Section 58-61-401 is amended to read:
317          58-61-401. Grounds for action regarding license -- Disciplinary proceedings.
318          [The] (1) Subject to Subsection (2), the division's grounds for refusing to issue a
319     license to an applicant, for refusing to renew the license of a licensee, for revoking, suspending,
320     restricting, or placing on probation the license of a licensee, for issuing a public or private
321     reprimand to a licensee, and for issuing a cease and desist order are under Section 58-1-401.
322          (2) The division may not refuse, revoke, suspend, or in any way restrict an applicant or
323     licensee's license under this chapter solely because the applicant or licensee seeks or
324     participates in mental health or substance abuse treatment.
325          Section 7. Section 58-67-401 is amended to read:
326          58-67-401. Grounds for denial of license -- Disciplinary proceedings.
327          [Grounds] (1) Subject to Subsection (2), grounds for division action are set forth in
328     Sections 58-1-401 and 58-67-503.
329          (2) The division may not refuse, revoke, suspend, or in any way restrict an applicant or
330     licensee's license under this chapter solely because the applicant or licensee seeks or
331     participates in mental health or substance abuse treatment.
332          Section 8. Section 58-68-401 is amended to read:
333          58-68-401. Grounds for denial of license -- Disciplinary proceedings.
334          [Grounds] (1) Subject to Subsection (2), grounds for division action are set forth in
335     Sections 58-1-401 and 58-68-503.
336          (2) The division may not refuse, revoke, suspend, or in any way restrict an applicant or
337     licensee's license under this chapter solely because the applicant or licensee seeks or
338     participates in mental health or substance abuse treatment.
339          Section 9. Section 58-70a-401 is amended to read:
340          58-70a-401. Grounds for denial of license -- Disciplinary proceedings.
341          [Grounds] (1) Subject to Subsection (2), grounds for the following division actions
342     regarding a licensee are under Section 58-1-401:
343          [(1)] (a) refusing to issue a license to an applicant;
344          [(2)] (b) refusing to renew the license of a licensee;
345          [(3)] (c) revoking, suspending, restricting, or placing on probation the license of a
346     licensee;
347          [(4)] (d) issuing a public or private reprimand to a licensee; and
348          [(5)] (e) issuing a cease and desist order.
349          (2) The division may not refuse, revoke, suspend, or in any way restrict an applicant or
350     licensee's license under this chapter solely because the applicant or licensee seeks or
351     participates in mental health or substance abuse treatment.
352          Section 10. Section 58-81-105 is enacted to read:
353          58-81-105. Grounds for denial of license.
354          The division may not refuse, revoke, suspend, or in any way restrict the license of a
355     health care practitioner, as defined in Subsections 58-81-102(2)(c), (g), (h), (i), (j), and (l),
356     under this chapter solely because the health care practitioner seeks or participates in mental
357     health or substance abuse treatment.
358          Section 11. Appropriation.
359          The following sums of money are appropriated for the fiscal year beginning July 1,
360     2021 and ending June 30, 2022. These are additions to amounts previously appropriated for
361     fiscal year 2022. Under the terms and conditions of Title 63J, Chapter 1, Budgetary Procedures
362     Act, the Legislature appropriates the following sums of money from the funds or accounts
363     indicated for the use and support of the government of the state of Utah.
364     ITEM 1
365          To Department of Health - Medicaid Services
366               From Federal Funds
$3,780,000

367               From Federal Funds, One-time
($2,950,000)

368               From Expendable Receipts
$340,000

369               From Expendable Receipts, One-time
($260,000)

370               From Medicaid Expansion Fund
$36,000

371               From Medicaid Expansion Fund, One-time
($26,000)

372               Schedule of Programs:
373                    Medicaid Expansion                         $80,000
374                    Mental Health and Substance Abuse               $1,142,600
375          The Legislature intends that the Department of Health use the appropriations provided
376     under this item to increase the Medicaid reimbursement rates for mental health plans.
377     ITEM 2
378          To Department of Human Services - Division of Substance Abuse and Mental Health
379               From General Fund
$1,369,100

380               From General Fund, One-time
($1,066,500)

381               Schedule of Programs:
382                    Mental Health Centers                    $302,600
383          The Legislature intends that the Department of Human Services use the appropriations
384     provided under this item to increase the Medicaid reimbursement rates for mental health plans.
385          Section 12. Effective date.
386          (1) Except as provided in Subsections (2) and (3), this bill takes effect on May 5, 2021.
387          (2) The amendments to Section 31A-22-649.5, if approved by two-thirds of all the
388     members elected to each house, take effect upon approval by the governor, or the day following
389     the constitutional time limit of Utah Constitution, Article VII, Section 8, without the governor's
390     signature, or in the case of a veto, the date of veto override.
391          (3) The amendments to Section 26-18-405.5 take effect on July 1, 2022.
392          Section 13. Coordinating S.B. 161 with S.B. 41 -- Superseding amendment.
393          If this S.B. 161 and S.B. 41, Mental Health Access Amendments, both pass and become
394     law, the Legislature intends that the amendments to Section 31A-22-649.5 in this bill supersede
395     the amendments to Section 31A-22-649.5 in S.B. 41 when the Office of Legislative Research
396     and General Counsel prepare the Utah Code database for publication.