The saga of SB 493: Hernandez and California's new provider status law


California state Sen. Ed Hernandez, OD, (D-24) explained that the Affordable Care Act’s creation of a “huge need” for primary care providers “prompted me to introduce a series of scope of practice bills to address the issue,” including SB 493 for pharmacists.

“Political battles over scope of practice are contentious for any profession. I knew that going in,” recalled California state Sen. Ed Hernandez, OD, (D-24) who last year introduced a series of scope of practice bills, including SB 493 for pharmacists.

But as Dr. Ed, an optometrist and local business owner choosing to practice in a Latino community with many Medicaid patients, Hernandez also knew that communities of color; and other communities in California don’t have access to primary care. “Fewer and fewer physicians are going to these communities or taking patients with Medicaid,” he said. So Hernandez looked at the abilities of pharmacists, optometrists, and nurse practitioners and the need to expand their scopes of practice to utilize them more efficiently within the health care system.

Hernandez represents roughly just under a million people from the City of Los Angeles to the Eastern San Gabriel Valley in communities that are predominantly Latino, working class, and second- or third-generation immigrants. He also serves as the Chair of the Senate Committee on Health. “I’ve always said this: pharmacists are completely overtrained and underutilized,” he told Pharmacy Today. On March 13, 2013, Hernandez announced his introduction of three separate bills to allow pharmacists, optometrists, and nurse practitioners to practice to the full extent of their education and training. (Two other authors carried bills for physician assistants; Hernandez coauthored.) 

Ultimately, only the pharmacist bill moved forward. On May 29, the California Senate approved SB 493, and it went to the California Assembly. On July 19, the California Medical Association (CMA) became “neutral” on an amended version of SB 493, and soon all organized opposition was dropped. On September 11, the California Assembly voted unanimously to pass SB 493, and the next day, the state Senate completed final approval. On October 1, Gov. Jerry Brown of California signed SB 493 into law. 

“I’m very proud to have got it to the governor’s desk,” Hernandez said. “I believe it’s kind of a blueprint for where the rest of the country’s going to follow.” The new law gives new authorities to all licensed pharmacists, including the ability to furnish certain hormonal contraceptives, nicotine replacement products, and prescription medications for travel and to independently initiate and administer certain vaccines; and declares that pharmacists are health care providers who have the authority to provide health care services. It also establishes an Advanced Practice Pharmacist (APP) recognition for pharmacists meeting certain criteria and gives additional new authorities related to direct patient care to APPs. 

“But just one person alone wasn’t going to get a piece of major legislation like that over the finish line,” Hernandez said. “It was going to require the advocacy group that represents that profession as well.” 

Crafting SB 493

The California Pharmacists Association (CPhA) and the California Society of Health-System Pharmacists (CSHP) worked with Hernandez on the legislation. “Well over a year ago, [I] kind of laid out the role of where I felt pharmacy should go. And they were obviously very supportive,” he said. “They understood the dynamics of what it took.” 

In August 2012, CSHP and CPhA were forming provider status committees whose respective chairs—CSHP’s Ryan Gates, PharmD, CDE, CGP, and CPhA’s Sarah McBane, PharmD, CDE, BCPS, FCCP—then convinced their committees and associations to join together “to really get at the strength and unity of the voice [for] the profession,” Gates told Today

McBane and Gates became Co-Chairs of the Joint Provider Status Task Force, which first met in December 2012. At a full-day meeting in Burbank, CA, the joint task force—comprising pharmacists from community settings to Kaiser Permanente to schools of pharmacy to safety net hospitals—hashed out the profession’s objectives for the legislation. At first, the diversity around the table made it “very difficult to get to a granular level,” Gates said. “But at the end of the day, we really sat down as a group, as a profession, and talked about: How can we expand access to care in the community setting?” In fact, by about 1:00 pm, “everything really started clicking.”

“One thing we were careful of is we didn’t propose anything too radical. We carefully crafted our bill as far as scope of practice provisions are concerned to identify things that are worth fighting for,” said Jon R. Roth, CAE, CPhA CEO. Some other changes “might not have been worth it because it would have been a huge battle over something that really didn’t gain much for pharmacists. So we tried to prioritize.”

One priority was a flat-out declaration that pharmacists are health care providers. “That’s what a lot of people considered to be the provider status part of it,” Roth said. While the provider status designation by itself does not make pharmacists eligible to bill California’s Medicaid program, it was a first step in that direction. Ensuring that pharmacists have “the scope of practice, or the legal authority, to perform the types of functions that health care payers want pharmacists to do” was another step on the path to payment. 

Proposing the necessary scope of practice changes, the joint task force knew, would lead to “pushback potentially from the organized medical groups,” said Brian Warren, CPhA Center for Advocacy Vice President. Health insurance companies, managed care organizations, and patient advocacy groups actually supported those changes. On the payment side, however, “you have the ability to kind of scare some of those health insurance companies and HMOs,” he continued. “Dealing with organized medicine in opposition, as well as the managed care organizations and the health insurance companies, would have been too many people to be fighting all at once. That was part of the strategy for bifurcating.”

The joint task force also had to get buy-in from the associations’ members on the controversial creation of two different classifications of pharmacists in which the APP recognition gives experienced pharmacists a few select additional authorities.  

Top to bottom: Hernandez, an optometrist, at his private practice; Ryan Gates, PharmD, CDE, CGP, and Dawn Benton, MBA, of the California Society of Health-System Pharmacists (CSHP); pharmacists, student pharmacists, and pharmacy technicians participate in the California Pharmacy Legislative Day on April 16, 2013; Hernandez talks with another state senator on the Senate floor.

California Pharmacists Association and CSHP members in front of the state capitol building at the pharmacy legislative day.

Passing SB 493

Hernandez was well prepared to frame the bill for the California State Legislature “because of the battles that I had with the optometrists as they moved their scope of practice over many decades,” he said. “Obviously, with the implementation of the Affordable Care Act, there is going to be a huge need for primary care providers not only in my district, but in the state of California.” The worsening provider shortage for patients, Warren said, “created a ‘why this is needed now’ type of thing that resonated with the legislature and also resonated with the medical community.”

CPhA and CSHP joined the California Association for Nurse Practitioners and the California Optometric Association to form the Californians for Accessible Healthcare coalition. Explained Dawn Benton, MBA, CSHP Executive Vice President and CEO, “We all agreed to be arm in arm in regards to support for each other.” At the same time, the state senator’s decision to sponsor the three scope of practice bills separately, according to Benton, was important for the pharmacists “politically and strategically,” given the risk of losing them all versus the chance to get one or two through. 

Hernandez told Today that CSHP and CPhA “played a critical role in lobbying the bill.” Both associations hired lobbyists. “They always say there’s two things you don’t want to see being made, which are legislation and sausage. Nothing is closer to the truth,” Gates said. 

Pieces of legislation never finish as they were first introduced, and SB 493 was no exception. “There was concern by the opposition,” Hernandez said. “We tried to address them as much as we could.” Several amendments and long negotiations later, Warren said, CMA withdrew its opposition. “We know plenty of physicians. Many of our members work with physicians who are supportive of this. That was another thing that really helped us.” CMA never dropped its opposition to the optometrist and nurse practitioner bills.

“It felt like a perfect marriage collaborating with Dr. Hernandez to pass SB 493,” Benton said. “Pharmacy needed a champion to lead our cause, and he was the ideal candidate. He is so highly respected not only as an optometrist and legislator, but as a person with strong moral character, which blended perfectly with the fact that pharmacists are highly trusted professionals. We aligned on the compelling nature of legislation focusing on the need to expand patient access. Collaborating on the process was the key to its success.”

Hernandez believes that SB 493 is now one of the most progressive laws in the country. Because California is one of the largest states, “you’re going to see a lot more [states] move in that direction,” he said. “The culture of pharmacy needs to change from that of getting reimbursed for dispensing a product to being recognized as a provider and getting reimbursed for providing a service.”

Political insights for pharmacists in other states

Pharmacists pursuing provider status legislation in other states must consider and take advantage of multiple factors, according to Ryan Gates, PharmD, CDE, CGP, Co-Chair of the Joint Provider Status Task Force and a member of the California Society of Health-System Pharmacists’ Board of Directors. 

First, find a political legislator champion to sponsor the bill. Second, identify those pockets of pharmacists in the state who are operating as providers successfully—a flagship example of what the proposed legislation is trying to accomplish—and within that pocket, identify a physician champion. “I can’t overstate the importance of not just having physician champions, but you’ve got to have physician champions for the legislation as well,” Gates said.

Pharmacists also must have outcomes data “to show the public interest is at heart here.” And they must keep the patient at the center of every discussion. “It’s not about pharmacists’ profession, it’s not about scope, it’s not about getting paid—that’ll come, but you’ve got to start with the conversation that there’s not enough access to care,” Gates continued. “There’s a physician shortage, there’s not enough people to see patients, and pharmacists can meet that need. … We can improve the lives of citizens of this state, but we need to move this barrier out of the way.” Have a story to tell to win the hearts and minds of legislators and the people who support the bill. 

Finally, work with the other associations and do what is needed to minimize and mitigate the potential opposition. “I think it was a monumental feat. We knocked it out of the park together,” Gates said. “It’s a wonderful testimony for how the associations within the profession can work together to accomplish something incredible.”