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  








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          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  








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            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