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Banning Noncompete Contracts for Medical Staff Riles Hospitals

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by Harris Meyer
Mon, 27 Mar 2023 09:00:00 +0000

Dr. Jacqui O'Kane took a job with a hospital in southern Georgia in 2020, as the lone doctor in a primary care clinic in a small town that's a medically underserved area. She soon attracted nearly 3,000 patients.

But she said the hospital pressed her to take more new patients, so she had to work nights and weekends — not ideal for the mother of two young daughters. She thought about opening her own practice in town, which would give her more control over her schedule.

The problem was that her three-year contract included a noncompete clause barring her from practicing within 50 miles of the hospital for two years after it ended.

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So, she has decided to join a practice in South Carolina. That means she and her husband will sell their house, move hundreds of miles, and enroll their children in a new school.

“It sucks,” she said. “I know my patients very well, and I feel like I'm being forced to abandon them. But I can't stay in this job because it's unhealthy for me to work this much.”

In January, the Federal Trade Commission proposed to end predicaments like O'Kane's by prohibiting noncompete clauses in employment contracts. “The to change is core to economic liberty and to a competitive, thriving economy,” said Lina Khan, the FTC chairperson.

The proposed rule would prohibit employment contract provisions that block employees or contractors from working for a competing employer when they move on, or from starting a competing business. Such contracts typically bar people from working within a certain geographic area for a period after the job ends.

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The FTC estimates that 30 million workers are bound by noncompete clauses. It says ending those provisions would boost economic competition, reduce prices, and increase workers' earnings overall by up to $296 billion a year.

Eliminating noncompete contracts would allow to practice wherever their services are needed, which would improve patients' access to care. They say it would them to speak out about unsafe conditions for patients, since they wouldn't have to worry about getting fired and not being able to continue working in their community.

But the FTC's proposal faces resistance from employers in all industries, hospitals and private equity-backed medical groups that employ thousands of physicians, nurse practitioners, and other medical professionals.

It's about money for them, too. They say eliminating noncompetes would drive up the cost of hospital care because hospitals would have to pay physicians more to keep them. They also say noncompete clauses are necessary to protect proprietary information and investments in employee training, and to prevent employees from taking clients and patients with them when they .

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Business and hospital groups are likely to sue to block the rule, arguing that Congress hasn't authorized the commission to regulate noncompete clauses. While there is bipartisan support in Congress for legislation that would restrict noncompete clauses and authorize FTC action, the bill hasn't advanced; similar legislation stalled in past years.

Health care industry groups hope to block any change with the argument that the FTC lacks statutory authority to regulate nonprofit, or tax-exempt, hospitals, which account for nearly 60% of all U.S. community hospitals. In the proposed rule, the FTC acknowledged that entities not conducting business for profit may not be subject to the rule because they are exempt from coverage under the Federal Trade Commission Act, the law that gives the agency its authority.

“The rule would create an unlevel playing field because we compete with nonprofit and public hospitals that wouldn't be subject to it,” said Chip Kahn, CEO of the Federation of American Hospitals, which represents for-profit hospital systems.

But other experts aren't sure the FTC lacks authority over nonprofits. While the FTC Act exempts nonprofits, the commission has acted many times under the Sherman Act and the Clayton Act, federal antitrust laws used to block anti-competitive conduct by nonprofit hospital systems. It's not clear whether the FTC will clarify this issue before it finalizes the rule.

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“We fully support having the noncompete ban apply to all hospitals,” said Dr. Jonathan Jones, president of the American Academy of Emergency Medicine, half of whose members are bound by noncompetes.

California, North Dakota, and Oklahoma already ban enforcement of noncompete clauses for all employees, while six other states prohibit enforcement of noncompete clauses for physicians. Even in states without bans, judges have invalidated noncompetes when they found them to be overbroad or unreasonable.

But it can cost tens of thousands of dollars in legal fees to challenge a noncompete clause, and other employers may not want to take the risk of hiring a person in the middle of a legal fight, said Luke Campbell, a Seattle attorney who represents physicians.

The FTC rule also would bar the use of nondisclosure or training repayment agreements in employment contracts if they functioned as de facto noncompetes.

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Hospitals often require nurses to sign training repayment agreement provisions, called TRAPs, which nursing groups say lock nurses into jobs by demanding they pay as much as $20,000, for what's essentially job orientation, if they leave before two years. National Nurses United, a labor union, wants the FTC to explicitly prohibit TRAPs.

As of last year, nearly three-quarters of all U.S. physicians were employed by hospital systems or other companies, with many working under noncompete agreements. A 2018 survey found that nearly half of primary care physicians in California, Illinois, Georgia, Pennsylvania, and were bound by noncompetes.

Private equity-owned staffing firms such as TeamHealth, Envision , and Sound Physicians, which emergency physicians and other medical professionals to work in hospitals, commonly use noncompete provisions. None of those three companies agreed to talk about their employment contracts. As for-profit employers, noncompete clauses in their contracts clearly would be barred even if their employees were working in nonprofit hospitals.

Hospitals, insurers, and physician-owned medical groups also use noncompetes in employing doctors and other medical professionals.

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Hospital-based doctors — emergency physicians, anesthesiologists, hospitalists, radiologists, and pathologists — refute the industry's argument that they would take patients or proprietary information with them.

“We don't have any trade secrets and we don't have the capability of stealing patients because we don't have our own patient referral base,” said Dr. Robert McNamara, the chair of emergency medicine at Temple University.

Instead, he said, noncompetes are a way for the physician staffing firms to lock in their contracts with hospitals. “The private equity group can say to the hospital, ‘You might not like what we're doing, but if you get rid of us, every single one of your doctors must be replaced,'” McNamara said.

Dr. Vanessa Urbina, a general practice physician in central Florida, also worries about the impact on patients. She left a corporate-owned medical practice in Altamonte Springs last year because of what she said was an abusive . Hobbled by a noncompete agreement she signed forbidding her from practicing within 15 miles of the clinic, she opened her own primary care clinic in rural Mount Dora, 19 miles away.

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She had to stay in the area because of a child custody agreement. Fighting the noncompete cost her $25,000 in legal fees and lost income. Even though she now must drive farther to transport her daughter to school and back, she's happier in her new practice. But she's angry she can't take care of her former patients.

“They forced me to abandon my patients,” she said. “Now they have to wait three months for an appointment. Noncompetes should be illegal.”

By: Harris Meyer
Title: Banning Noncompete Contracts for Medical Staff Riles Hospitals
Sourced From: khn.org/news/article/banning-noncompete-contracts-for-medical-staff-riles-hospitals/
Published Date: Mon, 27 Mar 2023 09:00:00 +0000

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Kaiser Health News

Your Doctor or Your Insurer? Little-Known Rules May Ease the Choice in Medicare Advantage

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Susan Jaffe
Fri, 29 Mar 2024 09:00:00 +0000

Bart Klion, 95, and his wife, Barbara, faced a tough choice in January: The upstate New York couple learned that this year they could keep either their private, Medicare Advantage insurance plan — or their at Saratoga Hospital.

The Albany Medical Center system, which includes their hospital, is leaving the Klions' Humana plan — or, depending on which side is talking, the other way around. The breakup threatened to cut the couple's lifeline to cope with serious chronic conditions.

Klion refused to pick the lesser of two bad options without a fight.

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He contacted Humana, the Saratoga hospital, and the health system. The couple's doctors “are an exceptional group of caregivers and have made it possible for us to live an active and productive life,” he wrote to the hospital's CEO. He called his wife's former employer, which requires its retirees to enroll in a Humana Medicare Advantage plan to receive company health benefits. He also contacted the New York StateWide Senior Action Council, one of the nationwide State Health Insurance Assistance Programs that offer free, unbiased advice on Medicare.

Klion said they all told him the same thing: Keep your doctors or your insurance.

With rare exceptions, Advantage members are locked into their plans for the rest of the year — while health providers may leave at any time.

Disputes between insurers and providers can to entire hospital suddenly leaving the plans. Insurers must comply with extensive regulations from the Centers for Medicare & Services, including little-known protections for beneficiaries when doctors or hospitals leave their networks. But the news of a breakup can come as a surprise.

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In the nearly three decades since Congress created a private-sector alternative to original, government-run Medicare, the plans have enrolled a record 52% of Medicare's 66 million older or disabled adults, according to the CMS. But along with getting extra benefits that original Medicare doesn't offer, Advantage beneficiaries have discovered downsides. One common complaint is the requirement that they receive care only from networks of designated providers.

Many hospitals have also become disillusioned by the program.

“We hear every day, from our hospitals and health systems across the country, about challenges they experience with Medicare Advantage plans,” said Michelle Millerick, senior associate director for health insurance and coverage policy at the American Hospital Association, which represents about 5,000 hospitals. The hurdles include prior authorization restrictions, late or low payments, and “inappropriate denials of medically necessary covered services,” she said.

“Some of these issues get to a boiling point where decisions are made to not participate in networks anymore,” she said.

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An Escape Hatch

CMS gives most Advantage members two chances to change plans: during the annual open enrollment period in the fall and from January until March 31.

But a few years ago, CMS created an escape hatch by expanding special enrollment periods, or SEPs, which allow for “exceptional circumstances.” Beneficiaries who qualify can request SEPs to change plans or return to original Medicare.

According to CMS rules, there's an SEP may use if their health is in jeopardy due to problems getting or continuing care. This may include situations in which their health care providers are leaving their plans' networks, said David Lipschutz, an associate director at the Center for Medicare Advocacy.

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Another SEP is available for beneficiaries who experience “significant” network changes, although CMS officials declined to explain what qualifies as significant. However, in 2014, CMS offered this SEP to UnitedHealthcare Advantage members after the insurer terminated contracts with providers in 10 states.

When providers leave, CMS ensures that the plans maintain “adequate access to needed services,” Meena Seshamani, CMS deputy administrator and director of the federal Center for Medicare, said in a statement.

While hospitals say insurers are pushing them out, insurers blame hospitals for the turmoil in Medicare Advantage networks.

“Hospitals are using their dominant market positions to demand unprecedented double-digit rate increases and threatening to terminate their contracts if insurers don't agree,” said Ashley Bach, a spokesperson for Regence , which offers Advantage plans in Idaho, Oregon, Utah, and Washington state.

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Patients get caught in the middle.

“It feels like the powers that be are playing chicken,” said Mary Kay Taylor, 69, who lives near Tacoma, Washington. Regence BlueShield was in a weeks-long dispute with MultiCare, one of the largest medical systems in the state, where she gets her care.

“Those of us that need this care and coverage are really inconsequential to them,” she said. “We're left in limbo and uncertainty.”

Other breakups this year include Baton Rouge General hospital in Louisiana leaving Aetna's Medicare Advantage plans and Baptist Health in Kentucky leaving UnitedHealthcare and Wellcare Advantage plans. In San Diego, Scripps Health has left nearly all the area's Advantage plans.

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In North Carolina, UNC Health and UnitedHealthcare renewed their contract just three days before it would have expired, and only two days before the deadline for Advantage members to switch plans. And in New York City, Aetna told its Advantage members this year to be prepared to lose access to the 18 hospitals and other care facilities in the NewYork-Presbyterian Weill Cornell Medical Center health system, before reaching an agreement on a contract last week.

Limited Choices

Taylor didn't want to lose her doctors or her Regence Advantage plan. She's recovering from surgery and said waiting to see how the drama would end “was really scary.”

So, last month, she enrolled in another plan, with from Tim Smolen, director of Washington's SHIP, Statewide Health Insurance Benefits Advisors program. Soon afterward, Regence and MultiCare agreed to a new contract. But Taylor is allowed only one change before March 31 and can't return to Regence this year, Smolen said.

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Finding an alternative plan can be like winning at bingo. Some patients have multiple doctors, who all must be easy to get to and covered by the new plan. To avoid bigger, out-of-network bills, they must find a plan that also covers their prescription and includes their preferred pharmacies.

“A lot of times, we may get through the provider network and find that that's good to go but then we get to the drugs,” said Kelli Jo Greiner, state director of Minnesota's SHIP, Senior LinkAge Line. Since Jan. 1, counselors there have helped more than 900 people switch to new Advantage plans after HealthPartners, a large health system based in Bloomington, left Humana's Medicare Advantage plans.

Choices are more limited for low-income beneficiaries who receive subsidies for drugs and monthly premiums, which only a few plans accept, Greiner said.

For almost 6 million people, a former employer chooses a Medicare Advantage plan and requires them to enroll in it to receive retiree health benefits. If they want to keep a provider who leaves that plan, those beneficiaries must forfeit all their employer-subsidized health benefits, often including coverage for their families.

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The threat of losing coverage for their providers was one reason some New York City retirees sued Eric Adams to stop efforts to force 250,000 of them into an Aetna Advantage plan, said Marianne Pizzitola, president of the New York City Organization of Public Service Retirees, which filed the lawsuit. The retirees won three times, and city officials are appealing again.

CMS requires Advantage plans to notify their members 45 days before a primary care doctor leaves their plan and 30 days before a specialist physician drops out. But counselors who advise Medicare beneficiaries say the notice doesn't always work.

“A lot of people are experiencing disruptions to their care,” said Sophie Exdell, a program manager in San Diego for California's SHIP, the Health Insurance Counseling & Advocacy Program. She said about 32,000 people in San Diego lost access to Scripps Health providers when the system left most of the area's Advantage plans. Many didn't get the notice or, if they did, “they couldn't get through to someone to get help making a change,” she said.

CMS also requires plans to comply with network adequacy rules, which limit how far and how long members must travel to primary care doctors, specialists, hospitals, and other providers. The agency checks compliance every three years or more often if necessary.

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In the end, Bart Klion said he had no alternative but to stick with Humana because he and his wife couldn't afford to give up their retiree health benefits. He was able to find doctors willing to take on new patients this year.

But he wonders: “What happens in 2025?”

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By: Susan Jaffe
Title: Your Doctor or Your Insurer? Little-Known Rules May Ease the Choice in Medicare Advantage
Sourced From: kffhealthnews.org/news/article/medicare-advantage-breakups-contracts-hospitals-doctors-patients-choice/
Published Date: Fri, 29 Mar 2024 09:00:00 +0000

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KFF Health News’ ‘What the Health?’: The Supreme Court and the Abortion Pill

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Thu, 28 Mar 2024 19:45:14 +0000

The Host

Julie Rovner
KFF News


@jrovner


Read Julie's stories.

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Julie Rovner is chief Washington correspondent and host of KFF Health News' weekly health policy news , “What the Health?” A noted expert on health policy issues, Julie is the author of the critically praised reference book “Health Care and Policy A to Z,” now in its third edition.

In its first abortion case since the overturning of in 2022, the Supreme Court this looked unlikely to uphold an appeals court ruling that would dramatically restrict the availability of the abortion pill mifepristone. But the court already has another abortion-related case teed up for April, and abortion opponents have several more challenges in mind to limit the procedure in states where it remains legal.

Meanwhile, Republicans, former President Donald Trump, continue to take aim at popular health programs like Medicare, , and the Affordable Care Act on the campaign trail — much to the delight of Democrats, who feel they have an advantage on the issue.

This week's panelists are Julie Rovner of KFF Health News, Alice Miranda Ollstein of Politico, Sarah Karlin-Smith of the Pink Sheet, and Lauren Weber of The Washington Post.

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Panelists

Sarah Karlin-Smith
Pink Sheet


@SarahKarlin


Read Sarah's stories.

Alice Miranda Ollstein
Politico

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@AliceOllstein


Read Alice's stories.

Lauren Weber
The Washington Post


@LaurenWeberHP

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Read Lauren's stories.

Among the takeaways from this week's episode:

  • At least two conservative Supreme Court justices joined the three more progressive members of the bench during Tuesday's oral arguments in expressing skepticism about the challenge to the abortion drug mifepristone. Their questions focused primarily on whether the doctors challenging the drug had proven they were harmed by its availability — as well as whether the best remedy was to broadly restrict access to the drug for everyone else.
  • A ruling in favor of the doctors challenging mifepristone would have the potential to reduce the drug's safety and efficacy: In particular, one FDA subject to reversal adjusted dosing, and switching to using only the second drug in the current two-drug abortion pill regimen would also slightly increase the risk of complications.
  • Two conservative justices also raised the applicability of the Comstock Act, a long-dormant, 19th-century that restricts mail distribution of abortion-related items. Their questions are notable as advisers to Trump explore reviving the unenforced law should he win this November.
  • Meanwhile, a Democrat in Alabama flipped a House seat campaigning on abortion-related issues, as Trump again discusses implementing a national abortion ban. The issue is continuing to prove thorny for Republicans.
  • Even as Republicans try to avoid running on health care issues, the Heritage Foundation and a group of House Republicans have proposed plans that include changes to the health care system. Will the plans do more to rev up their base — or Democrats?
  • This Week in Medical Misinformation: TikTok's algorithm is boosting misleading information about hormonal birth control — and in some cases resulting in more unintended pregnancies.

Also this week, Rovner interviews KFF Health News' Tony Leys, who wrote a KFF Health News-NPR “Bill of the Month” feature about Medicare and a very expensive air-ambulance ride. If you have a baffling or outrageous medical bill you'd like to share with us, you can do that here.

Plus, for “extra credit,” the panelists suggest health policy stories they read this week they think you should read, too:

Julie Rovner: KFF Health News' “Overdosing on Chemo: A Common Gene Test Could Save Hundreds of Lives Each Year,” by Arthur Allen.

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Alice Miranda Ollstein: Stat's “Fetal Tissue Research Gains in Importance as Roadblocks Multiply,” by Olivia Goldhill.

Sarah Karlin-Smith: The Washington Post's “The Confusing, Stressful Ordeal of Flying With a Breast Pump,” by Hannah Sampson and Ben Brasch.

Lauren Weber: Stateline's “Deadly Fires From Phone, Scooter Batteries Leave Lawmakers Playing Catch-Up on Safety,” by Robbie Sequeira.

Also mentioned on this week's podcast:

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Credits

Francis Ying
Audio producer

Emmarie Huetteman
Editor

To hear all our podcasts, click here.

And subscribe to KFF Health News' “What the Health?” on SpotifyApple PodcastsPocket Casts, or wherever you listen to podcasts.

——————————
Title: KFF Health News' ‘What the Health?': The Supreme Court and the Abortion Pill
Sourced From: kffhealthnews.org/news/podcast/what-the-health-340-supreme-court-mifepristone-march-28-2024/
Published Date: Thu, 28 Mar 2024 19:45:14 +0000

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California Is Expanding Insurance Access for Teenagers Seeking Therapy on Their Own

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April Dembosky, KQED
Thu, 28 Mar 2024 09:00:00 +0000

When she was in ninth grade, Fiona Lu fell into a depression. She had trouble adjusting to her new high school in Orange County, California, and felt so isolated and exhausted that she cried every morning.

Lu wanted to get help, but her Medi-Cal plan wouldn't therapy unless she had permission from a parent or guardian.

Her mother — a single parent and an immigrant from China — worked long hours to for Fiona, her brother, and her grandmother. Finding time to explain to her mom what therapy was, and why she needed it, felt like too much of an obstacle.

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“I wouldn't want her to have to sign all these forms and go to therapy with me,” said Lu, now 18 and a freshman at UCLA. “There's a lot of rhetoric in immigrant cultures that having mental health concerns and getting treatment for that is a Western phenomenon.”

By her senior year of high school, Lu turned that experience into activism. She campaigned to change state policy to allow children 12 and older living in low-income households to get mental health counseling without their ' consent.

In October of last year, Gov. Gavin Newsom signed a new law expanding access to young patients covered by Medicaid, which is called Medi-Cal in California.

Teenagers with commercial insurance have had this privilege in the state for more than a decade. Yet parents of children who already had the ability to access care on their own were among the most vocal in opposing the expansion of that coverage by Medi-Cal.

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Many parents seized on the bill to grievances about how much control they believe the state has over their children, especially around gender identity and care.

One mother appeared on Fox News last spring calling school therapists “indoctrinators” and saying the bill them to fill children's heads with ideas about “transgenderism” without their parents knowing.

Those arguments were then repeated on social media and at protests held across California and in other parts of the country in late October.

At the California Capitol, several Republican lawmakers voted against the bill, AB 665. One of them was Assembly member James Gallagher of Sutter County.

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“If my child is dealing with a mental health crisis, I want to know about it,” Gallagher said while discussing the bill on the Assembly floor last spring. “This misguided, and I think wrongful, trend in our policy now that is continuing to exclude parents from that equation and say they don't need to be informed is wrong.”

State lawmaker salaries are too high for them or their families to qualify for Medi-Cal. Instead, they are offered a choice of 15 commercial health insurance plans, meaning children like Gallagher's already have the privileges that he objected to in his speech.

To Lu, this was frustrating and hypocritical. She said she felt that the opponents lining up against AB 665 at legislative hearings were mostly middle-class parents to hijack the narrative.

“It's inauthentic that they were advocating against a policy that won't directly affect them,” Lu said. “They don't realize that this is a policy that will affect hundreds of thousands of other families.”

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Sponsors of AB 665 presented the bill as a commonsense update to an existing law. In 2010, California lawmakers had made it easier for young people to access outpatient mental health treatment and emergency shelters without their parents' consent by removing a requirement that they be in immediate crisis.

But at the last minute, lawmakers in 2010 removed the expansion of coverage for teenagers by Medi-Cal for cost reasons. More than a decade later, AB 665 is meant to close the disparity between public and private insurance and level the playing field.

“This is about equity,” said Assembly member Wendy Carrillo, a Los Angeles Democrat and the bill's author.

The original law, which regulated private insurance plans, passed with bipartisan support and had little meaningful opposition in the , she said. The law was signed by a Republican governor, Arnold Schwarzenegger.

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“Since then, the extremes on both sides have gotten so extreme that we have a hard time actually talking about the need for mental health,” she said.

After Carrillo introduced the bill last year, her office faced threats. She said the goal of the law is not to divide families but to encourage communication between parents and children through counseling.

More than 20 other states allow young people to consent to outpatient mental health treatment without their parents' permission, including Colorado, Ohio, Tennessee, and Alabama, according to a 2015 paper by researchers at Rowan University.

To opponents of the new law, like Erin Friday, a San Francisco Bay Area attorney, AB 665 is part of a broader campaign to take parents' rights away in California, something she opposes regardless of what kind of health insurance children have.

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Friday is a self-described lifelong Democrat. But then she discovered her teenager had come out as transgender at school and for months had been referred to by a different name and different pronouns by teachers, without Friday's knowledge. She devoted herself to fighting bills that she saw as promoting “transgender ideology.” She said she plans to sue to try to overturn the new California law before it takes effect this summer.

“We're giving children autonomy they should never have,” Friday said.

Under the new law, young people will be able to talk to a therapist about gender identity without their parents' consent. But they cannot get residential treatment, medication, or gender-affirming surgery without their parents' OK, as some opponents have suggested.

Nor can minors run away from home or emancipate themselves under the law, as opponents have also suggested.

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“This law is not about inpatient psychiatric facilities. This law is not about changing child custody laws,” said Rachel Velcoff Hults, an attorney and the director of health of the National Center for Youth Law, which supported AB 665.

“This law is about ensuring when a young person needs counseling or needs a temporary roof over their head to ensure their own safety and well-being, that we want to make sure they have a way to access it,” she said.

Removing the parental consent requirement could also expand the number of mental health clinicians in California willing to treat young people on Medi-Cal. Without parental consent, under the old rules, clinicians could not be paid by Medi-Cal for the counseling they provided, either in a private practice or a school counselor's office.

Esther Lau struggled with mental health as a high school student in Fremont. Unlike Lu, she had her parents' support, but she couldn't find a therapist who accepted Medi-Cal. As the only native English speaker in her , she had to navigate the bureaucracy on her own.

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For her, AB 665 will give clinicians incentive to accept more young people from low-income households into their practices.

“For the opposition, it's just about political tactics and furthering their agenda,” Lau said. “The bill was designed to expand access to Medi-Cal youth, period.”

This article is from a partnership that includes KQED, NPR, and KFF Health News.

This article was produced by KFF Health News, which publishes California Healthline, an editorially independent service of the California Health Care Foundation. 

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——————————
By: April Dembosky, KQED
Title: California Is Expanding Insurance Access for Teenagers Seeking Therapy on Their Own
Sourced From: kffhealthnews.org/news/article/california-teen-access-mental-health-care-without-parental-consent/
Published Date: Thu, 28 Mar 2024 09:00:00 +0000

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