BILL ANALYSIS AB 2 Page 1 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 AB 2 Page 2 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; AB 2 Page 3 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. AB 2 Page 4 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 AB 2 Page 5 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. AB 2 Page 6 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 AB 2 Page 7 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 AB 2 Page 8 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 AB 2 Page 9 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. AB 2 Page 10 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 FN: 0001305