BILL ANALYSIS                                                                                                                                                                                                    



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          ASSEMBLY THIRD READING
          AB 2 (De La Torre)
          As Amended June 2, 2009
          Majority vote 

           HEALTH              13-6        APPROPRIATIONS      12-5        
           
           ------------------------------------------------------------------ 
          |Ayes:|Jones, Ammiano, Block,    |Ayes:|De Leon, Ammiano, Charles  |
          |     |Carter,     De La Torre,  |     |Calderon, Davis, Fuentes,  |
          |     |De Leon, Hall, Hayashi,   |     |Hall, John A. Perez,       |
          |     |Hernandez, Bonnie         |     |Price, Skinner, Solorio,   |
          |     |Lowenthal, Nava, V.       |     |Torlakson, Krekorian       |
          |     |Manuel Perez, Salas       |     |                           |
          |     |                          |     |                           |
          |-----+--------------------------+-----+---------------------------|
          |Nays:|Fletcher, Adams, Conway,  |Nays:|Nielsen, Duvall, Harkey,   |
          |     |Emmerson, Gaines, Audra   |     |Miller,                    |
          |     |Strickland                |     |Audra Strickland           |
          |     |                          |     |                           |
           ------------------------------------------------------------------ 
           SUMMARY  :  Imposes specific requirements and standards on health  
          care service plans licensed by the Department of Managed Health  
          Care (DMHC) and health insurers subject to regulation by the  
          California Department of Insurance (CDI), (collectively  
          carriers) related to the application forms, medical  
          underwriting, and notice and disclosure of rights and  
          responsibilities for individual, non-group health plan  
          contracts, and health insurance policies, including the  
          establishment of an independent external review system, related  
          to carrier decisions to cancel or rescind an individual's health  
          care coverage.  Specifically,  this bill  :  

          1)Requires DMHC and CDI to jointly establish, by regulation,  
            standard information and health history questions that  
            carriers must use in individual health care coverage  
            application forms, as specified, including a pool of approved  
            questions for use in applications, and prohibits applications  
            from containing any other questions except for the approved  
            questions.

          2)Requires the standard information and health history questions  
            developed for applications to contain clear and unambiguous  
            information and questions designed to ascertain the health  








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            history of applicants, to be based on medical information  
            reasonable and necessary for medical underwriting purposes,  
            and to include a limitation on how far back in time from the  
            application date the applicant was diagnosed and treated for  
            the health condition.

          3)Requires carriers to use only the standard pool of approved  
            questions within six months after adoption, and on and after  
            January 1, 2011, requires all individual coverage applications  
            to be approved by DMHC or CDI.

          4)Requires carriers to complete medical underwriting prior to  
            issuing a health plan contract or health insurance policy,  
            defined as a reasonable investigation of the applicant's  
            health history information, which includes but is not limited  
            to, ensuring that information submitted on the application  
            form and the material submitted with the application form is  
            complete and accurate, and, resolving all reasonable questions  
            arising from the application form, materials submitted with  
            the application, or any information obtained by a carrier as  
            part of the verification of the accuracy and completeness of  
            the application.

          5)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, to ensure that the carrier meets specified  
            requirements relating to application review, including among  
            other things, identifying and making inquiries, including  
            contacting the applicant about any questions raised by  
            omissions, ambiguities, or inconsistencies in the application.  
             Requires the carrier to document all information collected  
            during the underwriting and review process.

          6)Requires carriers to send a copy of a written application to  
            an individual within ten days after coverage is issued, with a  
            notice that states all of the following:

             a)   The applicant should review the application carefully  
               and notify the carrier within 30 days of any inaccuracy and  
               if the applicant provides the carrier with new information  
               within the 30-day period, medical underwriting will apply  
               to the new information;









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             b)   Any intentional material misrepresentation or  
               intentional material omission in the application  
               information may result in cancellation or rescission of the  
               contract; and,

             c)   The applicant should retain a copy of the completed  
               written application for the applicant's records.

          7)After an individual contract or policy is issued, prohibits  
            the cancellation or rescission of the contract or policy  
            unless all of the following apply:

             a)   There was a material misrepresentation or material  
               omission in the application prior to the issuance of the  
               contract or policy that would have prevented the contract  
               from being entered into;

             b)   The carrier completed medical underwriting pursuant to  
               4) above prior to issuing the coverage;

             c)   The carrier demonstrates that the applicant  
               intentionally misrepresented or intentionally omitted  
               information on the application prior to the issuance of  
               coverage, with the purpose of misrepresenting his or her  
               health history; in order to obtain health care coverage;

             d)   The application form was approved by DMHC or CDI; and,

             e)   The carrier complied with the requirement to send the  
               complete application to the applicant along with the  
               written notice as required under 6) above.

          8)Specifies that, notwithstanding the prohibition in 7) above,  
            coverage may be canceled or not renewed for failure to pay the  
            premium as provided in existing law.

          9)Authorizes carriers to conduct a "postcontract investigation,"  
            if the carrier obtains information that a covered person may  
            have intentionally misrepresented or intentionally omitted  
            information on the application, and requires carriers to send  
            a specified notice within five days to the covered person that  
            the investigation may lead to rescission or cancellation of  
            the covered person's coverage.









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          10)Establishes specific timelines and notice requirements  
            related to the investigation in 9) above, and any subsequent  
            cancellation or rescission that results, including specific  
            and detailed information that must be included in notices  
            provided to covered persons under the contracts or policies  
            that are the subject of a "postissuance investigation,"  
            including, among other elements:

             a)   An opportunity for the covered person to provide any  
               evidence or information within 45 business days to negate  
               the carrier's reasons for initiating the investigation;

             b)   A requirement that the carrier complete the  
               investigation within 90 days of the notice;

             c)   A written notice via regular and certified mail to the  
               covered person, once the investigation is complete, with  
               one of the following determinations:

               i)     The carrier has determined that the covered person  
                 did not intentionally misrepresent or intentionally omit  
                 material information during the application process and  
                 that the covered person's health care coverage will not  
                 be canceled or rescinded; or,

               ii)    The carrier intends to seek approval from the  
                 director of DMHC or CDI commissioner to cancel or rescind  
                 the covered person's coverage for intentional  
                 misrepresentation or intentional omission of material  
                 information during the application for coverage process.

          11)Requires the written notice pursuant to 10) c) above to  
            include specified information including notice that any  
            decision to cancel or rescind the covered person's coverage  
            will not become effective until the independent review  
            organization established by this bill upholds the decision,  
            unless the covered person opts out of the independent review.

          12)Requires carriers to continue to authorize and provide all  
            medically necessary services until the effective date of a  
            cancellation or rescission, and establishes the effective date  
            of cancellation or any rescission as no earlier than the date  
            of certified notice to the covered person that the independent  
            review organization established in this bill has made a  








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            determination upholding the decision to cancel or rescind. 

          13)Commencing January 1, 2011, establishes within DMHC and CDI  
            an independent review process (IRP) for decisions to cancel or  
            rescind individual health plan contracts or individual health  
            insurance policies and requires that all carrier decisions to  
            cancel or rescind be reviewed in the IRP, unless the covered  
            person opts-out of the process.  

          14)Establishes the rules for operation of the IRP, including,  
            among other things, that a covered person can designate an  
            agent to act on his or her behalf, specific disclosures health  
            plans must provide individuals related to their right to an  
            IRP, specified materials related to the IRP which carriers  
            must provide to DMHC and CDI, and to the covered person,  
            within specified timelines, and, specific timelines and  
            detailed requirements for DMHC and CDI to expeditiously review  
            IRP requests.

          15)Requires DMHC and CDI to contract or otherwise arrange for  
            one or more independent not-for-profit organizations to  
            conduct IRPs, where the review organizations (organizations)  
            are independent of carriers doing business in California and  
            meet the specific conflict of interest standards established  
            by this bill and establishes specific timelines and process  
            for the conduct of the IRPs by the organizations, including  
            the requirement that arbitrators selected by the organizations  
            meet specified minimum requirements and provide the rationale  
            for the decision, as specified.  

          16)Authorizes organizations to use expert consultants as defined  
            but prohibits an expert consultant requested by an arbitrator  
            from rendering an opinion as to whether the covered person  
            intentionally misrepresented or intentionally omitted  
            information during the application process.
           
          17)Requires DMHC and CDI to immediately adopt the IRP  
            determination and promptly issue a written decision to the  
            parties that is binding on the carrier and after removing the  
            names of the parties, as specified, make available to the  
            public IRP decisions adopted by DMHC and CDI, at cost, and  
            after considering applicable laws governing disclosure of  
            public records, confidentiality, and persons privacy.









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          18)Prohibits carriers from engaging in conduct to prolong the  
            IRP, subject to a specific administrative penalty of $5,000  
            for each day the IRP is prolonged or an IRP decision is not  
            implemented, as specified.

          19)Imposes a per case assessment on carriers to support the  
            costs of the IRP, but exempts carriers that do not cancel or  
            rescind contracts from the fees and assessments established.

          20)On and after January 1, 2010, requires carriers to report the  
            number of individual contracts and policies issued and the  
            number where the carrier initiated a cancellation or  
            rescission, and requires DMHC and CDI to annually post the  
            information on the respective department Internet Web sites,  
            as specified.

          21)Exempts from the provisions of this bill plan contracts or  
            health insurance policies for coverage issued under Medi-Cal,  
            Access for Infants and Mothers Program, the Healthy Families  
            Program and the federal Medicare Program.

           EXISTING LAW  :

          1)Provides for regulation of health plans by DMHC under the  
            Knox-Keene Health Care Service Plan Act of 1975 (Knox-Keene)  
            and for regulation of health insurers by the CDI under the  
            Insurance Code.

          2)Prohibits carriers from engaging in "post-claims  
            underwriting," defined as rescinding, canceling, or limiting  
            of a plan contract due to a carrier's failure to complete  
            medical underwriting and resolve all reasonable questions  
            arising from written information submitted on or with an  
            application before issuing the plan contract or policy.  For  
            health plans regulated by DMHC, provides that the prohibition  
            against post-claims underwriting does not limit a plan's  
            remedies upon a showing of willful misrepresentation.  

          3)Prohibits a carrier from rescinding or modifying an  
            authorization for services after the service is rendered, for  
            any reason, including but not limited to, the carrier's  
            subsequent rescission, cancellation, or modification of the  
            enrollee or insured's contract or policy, or the carrier's  
            subsequent determination that the carrier did not make an  








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            accurate determination of the enrollee or subscriber's  
            eligibility.

          4)Requires applications for health plan contracts and health  
            insurance policies to conform to certain standards for  
            underwriting, including clear and unambiguous questions, when  
            health-related questions are used to ascertain an applicant's  
            health, and requires questions relating to the health  
            condition or health history of the applicant to be based on  
            medical information reasonable and necessary for medical  
            underwriting purposes.

          5)Prohibits health insurers but not health plans from voiding  
            (rescinding) a policy or denying a claim based on  
            misstatements in the application after two years, except for  
            fraudulent misrepresentations, sometimes referred to as an  
            incontestability clause for insurance purposes.

           FISCAL EFFECT  :  According to Assembly Appropriations Committee:

          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.

          2)Annual fee-supported special fund costs of $200,000, combined.  
             Between 500 and 1,500 health policies have been rescinded in  
            recent years.

          3)One-time fee-supported special fund costs of $200,000 to DMHC  
            and CDI, combined, to develop and implement a standard  
            application form and health history questions.  

           COMMENTS  :  According to the author, news reports and lawsuits  
          have identified families saddled with thousands in medical debt  
          for treatment they believed was covered.  In many cases, their  
          individual health coverage was rescinded by health plans on  
          grounds that the consumers submitted false information on their  
          original applications several years prior.  The author points  
          out that further investigation of these cases often revealed  
          that insurers and health plans scoured the applications  
          searching for any omission or possible inaccuracy after the  
          patient submitted claims for expensive, medically necessary  
          treatment.  The author argues that this bill protects consumers  








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          from open-ended and unlimited exposure to losing health coverage  
          going back to issues arising from the application, while giving  
          insurers a reasonable amount of time to review and investigate  
          individual applications.

          Rescission is the process whereby insurers cancel health  
          coverage on the basis of alleged missing or incomplete  
          information on the part of the insured person at the time of  
          application.  Rescission involves a determination by the plan  
          that the contract between the plan and the enrollee never  
          existed because of a misrepresentation by the enrollee at the  
          time of application, and that; therefore, any health care  
          services the enrollee received during the entire time of the  
          contract are to be paid for by the enrollee.  Rescission is what  
          is known as an equitable remedy, where the remedy is meant to  
          put the parties back to their original status, with premiums  
          refunded to the enrollee, and any health care costs already paid  
          by the carrier are then owed by the enrollee.  The practice of  
          waiting for a health care claim to come in and then canceling or  
          rescinding the policy retroactively is known as post-claims  
          underwriting.  Post-claims underwriting is essentially using the  
          underwriting process after the fact instead of before coverage  
          is offered.  In health coverage, because of the dual regulatory  
          frameworks of DMHC and CDI, there are different statutory  
          provisions that apply to health plans under DMHC and health  
          insurers under CDI in this area.  Post-claims underwriting is  
          prohibited under both Knox-Keene and the Insurance Code and  
          health plans under both frameworks are required to complete  
          medical underwriting and to have answered all reasonable  
          questions arising from written information submitted on or with  
          an application prior to issuing the coverage.  Under Knox-Keene,  
          in addition, the statute provides that the prohibition against  
          post-claims does not restrict a plan's ability to rescind  
          coverage in cases where the patient has engaged in willful  
          misrepresentation.  The Insurance Code does not include the same  
          specific reference to rescissions based on willful  
          misrepresentation.

          The California Medical Association (CMA), sponsor of this bill,  
          states that the time has come for an external review process to  
          stop health insurers from acting as "judge and jury" when they  
          rescind coverage.  CMA argues that this bill provides protection  
          for patients by allowing regulators to independently review  
          potential rescissions and improves the process at the front end  








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          by requiring carriers to develop applications using only a pool  
          of approved questions.  Consumer Watchdog supports this bill and  
          states that rescission of a health coverage policy following an  
          illness has a particularly harsh impact on the patient.  A  
          rescinded policy is cancelled as of the day it was sold, leaving  
          patients in deep medical debt, uninsured and virtually  
          uninsurable, while facing ongoing health care costs.  According  
          to Consumer Watchdog, this bill is uncomplicated and merely  
          reiterates what consumer advocates and regulators have long said  
          is the legal standard for health plan rescission: patients  
          cannot be retroactively cancelled unless they lied about a  
          health condition by intentionally omitting or intentionally  
          misrepresenting health information when applying for coverage.   
          Consumer Watchdog contends that this bill would end "gotcha"  
          cancellations against innocent patients who never knew of, or  
          failed to understand the significance of, a past medical  
          problem.  Consumer Attorneys of California supports this bill to  
          stop carriers from rescinding coverage based on the innocent  
          mistakes consumers make in the initial applications.  

          Kaiser Permanente is opposed unless this bill is amended to  
          include clear statutory guidelines relating to rescission,  
          including requiring carriers to do medical underwriting up front  
          and a prohibiting rescission unless the applicant misstates or  
          omits relevant information on the application.  Kaiser argues  
          that this bill is flawed because it pushes the process toward  
          litigation by requiring carriers to prove that an applicant  
           intentionally  misrepresented or omitted information.  Blue  
          Shield of California, also opposes this bill unless it is  
          amended and contends that this bill includes language written by  
          trial attorneys to gain the upper hand in their contingency fee  
          cases against carriers.  Delta Dental writes that specialized  
          health plans, such as dental health plans, should be exempted  
          from this bill, and not be subjected to prior regulatory  
          approval of individual dental coverage applications. 

          Health plans, business groups and health underwriters write in  
          opposition to this bill.  The California Association of Health  
          Plans contends that this bill overturns recent court rulings by  
          creating an intentional standard for every rescission case.   
          Health Net states that the willful standard will be difficult,  
          if not impossible, to prove.  Health Net expresses concern that  
          the willful standard in this bill will take effect prior to the  
          process for having new applications approved by the regulators.   








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          The Civil Justice Association writes in opposition to this bill  
          that the requirement of ascertaining intent renders the IRP both  
          impotent and moot.  California Chamber of Commerce objects to  
          the requirement in this bill that all rescissions be approved by  
          DMHC and CDI because it will significantly increase costs for  
          individuals and result in more uninsured.  


           Analysis Prepared by  :    Deborah Kelch / HEALTH / (916) 319-2097  


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