BILL ANALYSIS AB 2 Page 1 Date of Hearing: May 13, 2009 ASSEMBLY COMMITTEE ON APPROPRIATIONS Kevin De Leon, Chair AB 2 (De La Torre) - As Amended: April 20, 2009 Policy Committee: Health Vote:13-6 Urgency: No State Mandated Local Program: Yes Reimbursable: No SUMMARY This bill establishes requirements for health plans licensed by the Department of Managed Health Care (DMHC) and health insurers (carriers) subject to regulation by the California Department of Insurance (CDI), related to individual health insurance application forms, medical underwriting, and notice and disclosure of rights and responsibilities. Specifically, this bill: 1)Requires DMHC and CDI to establish regulations and standard information and health history questions that carriers must use in individual health care coverage application forms. Requires carriers to adopt and implement written medical underwriting policies and procedures, and to file the policies and procedures with the respective regulator on or before January 1, 2011. 2)After an individual contract or policy is issued, prohibits the cancellation or rescission of the contract or policy unless specified conditions are met. Authorizes carriers to conduct an investigation if the carrier obtains information that a covered person may have intentionally misrepresented or intentionally omitted application information. 3)Requires DMHC and CDI to establish an independent review process (IRP) by January 1, 2011, to review health plan and insurer decisions to cancel or rescind individual health plan contracts. Requires all decisions to cancel or rescind be reviewed in the IRP, unless the policy holder opts-out of the process. FISCAL EFFECT AB 2 Page 2 1)One-time fee-supported special fund costs of $400,000 to DMHC and CDI, combined, to establish regulations, confer on standardized forms, and establish an IRP process for cancellation decisions. Annual fee-supported special fund costs of $200,000, combined. Between 500 and 1,500 health policies have been rescinded in recent years. 2)One-time fee-supported special fund cost of $200,000 to DMHC to CDI, combined, to develop and implement a standard application form and health history questions. COMMENTS 1)Rationale . This bill sponsored by the California Medical Association (CMA) to increase regulatory authority over rescissions. According to the author, the standardization and increased oversight established by this bill will improve underwriting and reduce rescissions in the individual health insurance market. While most Californians receive health coverage via employer plans or public program coverage, 2.6 million individuals buy coverage in the individual market, which has fewer consumer protections and results in rescissions, or the retroactive cancellation of health coverage. 2)Post-Claims Underwriting and Rescission . The practice of waiting for a major health care claim to be submitted for payment, then investigating a patient's medical history, and canceling or rescinding the policy retroactively is known as post-claims underwriting. Post-claims underwriting means health plans and insurers are using the underwriting process after the fact, instead of before coverage is offered. Rescission involves a determination by the plan or insurer that, as a result of application errors or omissions, the contract between plan and enrollee never existed, and therefore any health care services the enrollee received are not covered by the health plan or insurer and are to be paid by the enrollee. When a health plan rescinds a policy, this affects not only the enrollee but also medical providers who rendered services. Both DMHC and CDI have taken significant regulatory actions in the past couple of years to levy penalties against health plans and insurers related to policy cancellations. In AB 2 Page 3 addition to recent regulatory action in the area of rescission, a significant court case was not taken up by the California Supreme Court in 2008, Hailey v. California Physician's Service, 2007, Cal. App. 4th , allowing the Court of Appeals decision to stand. The court held that health plans are precluded from rescinding a health contract for a material misrepresentation or omission unless the plan can demonstrate the misrepresentation was willful or the plan made reasonable efforts to ensure an application for coverage was correct. 3)Concerns . Health plans and insurers oppose this bill and are concerned about the intentional standard established by this bill with respect to individual insurance applications. 4)Related Legislation . AB 1945 (De La Torre), was similar to this bill and was vetoed due to concerns about increased litigation and costs. Analysis Prepared by : Mary Ader / APPR. / (916) 319-2081