BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 2| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 2 Author: De La Torre (D) Amended: 8/17/09 in Senate Vote: 21 SENATE HEALTH COMMITTEE : 6-4, 7/8/09 AYES: Alquist, Cedillo, DeSaulnier, Leno, Pavley, Wolk NOES: Strickland, Cox, Maldonado, Negrete McLeod NO VOTE RECORDED: Aanestad SENATE JUDICIARY COMMITTEE : 3-2, 7/14/09 AYES: Corbett, Florez, Leno NOES: Harman, Walters SENATE APPROPRIATIONS COMMITTEE : 7-4, 8/27/09 AYES: Kehoe, Corbett, Hancock, Leno, Oropeza, Wolk, Yee NOES: Cox, Denham, Runner, Walters NO VOTE RECORDED: Price, Wyland ASSEMBLY FLOOR : 45-26, 6/3/09 - See last page for vote SUBJECT : Health coverage SOURCE : California Medical Association DIGEST : This bill establishes requirements on health care service plans and health insurers related to individual health insurance application forms, medical underwriting, and notices and disclosures of rights and responsibilities. CONTINUED AB 2 Page 2 ANALYSIS : Existing law provides for the regulation of health care service plans by the Department of Managed Health Care (DMHC) and of health insurers by the Department of Insurance (CDI). Existing law prohibits health plans and insurers from engaging in "post-claims" underwriting, defined to mean the rescinding, canceling, or limiting of a plan contract or insurance policy due to the plan's or insurer's failure to complete medical underwriting and resolve all reasonable questions relative to an application for coverage before issuing the contract or policy. For health care service plans regulated by DMHC, the prohibition on post-claims underwriting does not limit a plan's remedies upon a showing of willful misrepresentation. This bill exempts health care service plan contracts for coverage issued under Medi-Cal, the Healthy Families Program, the Access for Infants and Mothers program, the federal Medicare program, and dental plans. Specifically, this bill: 1. Requires DMHC and CDI to jointly establish regulations that set standard information and health history questions that would be used by all health plans and insurers commencing six months after their adoption. 2. Requires individual health plans and insurance applications to be reviewed and approved by DMHC and CDI before they may be used on and after January 1, 2011. 3. Requires health plans and insurers to complete medical underwriting prior to issuing a contract or policy and to adopt and implement written medical underwriting policies and procedures, as specified. 4. Requires health plans and insurers to file their medical underwriting policies and procedures with DMHC or CDI on or before January 1, 2011. 5. Allows an applicant 30 days to review his/her application and correct any errors. AB 2 Page 3 6. Prohibits a health plan or insurer from rescinding an issued individual health care contract or individual insurance policy, as specified. 7. Provides that an enrollment or individual policy may be canceled or not renewed due failure to pay the required charge for coverage. 8. Permits the health plan or insurer to investigate any potential omissions or alleged misrepresented material. 9. Commencing January 1, 2011, establishes independent review processes in DMHC and CDI for the purpose of reviewing proposed rescissions or cancellations of contracts or policies. 10.Provides that a health plan or insurer must continue to authorize and provide all medically necessary health care services until the effective date of cancellation or rescission. 11.Requires that all health plan and insurer decisions to cancel or rescind a health plan contract or insurance policy be reviewed by the independent review organization unless the enrollee or insured opts out of the independent review process. 12.Requires a health plan or insurer to prominently display information concerning the right of an enrollee or insured to an automatic independent review in the cases where a plan or insurer has decided to pursue cancellation or rescission of a health plan contract or insurance policy. 13.Requires DMHC and CDI to expeditiously review independent review requests and immediately notify the enrollee or subscriber or insured or policyholder, in writing, about the independent review process. 14.Requires the independent review organization to conduct the review, as specified. 15.Requires DMHC and CDI on or before January 1, 2011, to contract with one or more independent organizations in AB 2 Page 4 the state to conduct independent reviews of proposed health plan contract or insurance policy cancellations and rescissions. 16.Requires the Director of DMHC and the Commissioner of CDI to immediately adopt the determination of the independent review organization and to promptly issue a written decision to the parties involved in the review. 17.Provides that independent review organization decisions may be made available to the public upon request, after DMHC and CDI have removed the names of the parties and complying with applicable privacy laws. 18.Permits DMHC and CDI to assess an administrative penalty of not less than $5,000 on a health plan or insurer that engages in any conduct that would prolong the independent review process. 19.Provides that DMHC penalties would be deposited into the Managed Care Administrative Fines and Penalties Fund and that CDI penalties would be deposited in the Major Risk Medical Insurance Fund. 20.Requires DMHC and CDI to perform annual audits of independent review cases. 21.Requires that the costs of the independent review process be borne by the affected health plan or health insurer. 22.Requires that, on and after January 1, 2010, every health plan and insurer would annually report to DMHC and CDI, respectively, the total number of individual health plan contracts and health insurance policies issued, the total number of contracts and policies that the plan or insurer initiated or completed a cancellation or rescission. 23.Requires DMHC and CDI, on or before March 31, 2010, and annually thereafter, to publish information filed pursuant to these provisions on their websites. Prior legislation . AB 1945 (De La Torre), 2007-08 Session, AB 2 Page 5 was similar to this bill. The bill was vetoed by the Governor for the following reasons: "Unfortunately, the provisions of this bill will only increase costs and further restrict access for over 2 million Californians that currently obtain coverage in the individual market. My administration proposed comprehensive legislation to address this problem. In particular, my proposal contained several strong consumer protections that this bill fails to address. My proposal established a standard application to remove any possibility of plans using different health questions to disadvantage applicants. This bill does not contain that protection. My proposal required agents and brokers to sign under penalty of perjury that they had not altered an applicant's answers. Penalties were levied if they engaged in this unscrupulous behavior. This bill does not contain that protection. My proposal clearly outlined the rules that plans and insurers had to follow when considering whether to offer a contract to an applicant. This bill does not contain that protection. My proposal didn't allow plans to rescind or cancel if a doctor failed to inform a patient of a medical condition. This bill does not contain that protection. My proposal contained a two-year lookback protection that prevented plans from rescinding or canceling after two years. This bill does not contain that protection. My proposal protected family members and required coverage to be continued without additional underwriting or increase in premiums. This bill does not contain that protection. This bill was written by the attorneys that stand to benefit from its provisions. In rushing to protect a right to litigate, the proponents failed to consider the real consumer protections that are needed." FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes SUPPORT : (Verified 8/31/09) California Medical Association (source) American Cancer Society American Federation of State, County and Municipal Employees California Academy of Family Physicians AB 2 Page 6 California Academy of Physician Assistants California Alliance for Retired Americans California Chiropractic Association California Communities United Institute California Nurses Association/National Nurses Organizing Committee California School Employees Association California Society of Anesthesiologists California Teachers Association Congress of California Seniors Consumer Attorneys of California Consumer Watchdog Health Access California Latino Coalition for a Healthy California Office of the Los Angeles City Attorney OPPOSITION : (Verified 8/31/09) Association of California Life and Health Insurance Companies Anthem Blue Cross (unless amended) Blue Shield California Association of Dental Plans (unless amended) California Association of Health Plans California Association of Health Underwriters California Chamber of Commerce Civil Justice Association of California Health Net ARGUMENTS IN SUPPORT : The California Medical Association (CMA), the bill's sponsor, states that the time has come for an external review process to stop insurance plans from acting as "judge and jury" when they rescind coverage. CMA states that this bill provides protection for patients by allowing regulators to independently review potential rescissions and improves the process at the front end by requiring carriers to develop applications using only a pool of approved questions. Consumer Watchdog (CW) writes that rescission of a health coverage policy following an illness has a particularly harsh impact on the patient. CW states that 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. CW believes that patients left without AB 2 Page 7 health coverage suffer great personal hardship or bankruptcy and must often rely on overstretched public health programs for ongoing medical treatment. CW states that the bill 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. CW believes that this bill will end "gotcha" cancellations against innocent patients who never knew of, or failed to understand the significance of, a past medical problem. Health Access California writes that, while a small number of consumers are affected by the problem of post-claims underwriting, it is a real one. They support this bill, in part, because it includes a standardized questionnaire that all health insurers and health plans must use for underwriting of individual insurance. Health Access states that current law allows each health insurer or health plan to decide what to ask about and how to ask it, and that the resulting forms are confusing, sometimes misleading and are often not in plain language, and are often not translated in the language spoken by limited-English speakers. Health Access also believes that the standard for rescission under the bill provides consumers greater protection from rescission than the standard in existing law. The California Nurses Association writes that it requests the Legislature to send this bill back to the Governor in hopes that he will keep a promise to protect Californians from unlawful rescissions. Consumer Attorneys of California write in support that this is a historic bill that will help stop carriers from rescinding contracts based on the innocent mistakes consumers make. ARGUMENTS IN OPPOSITION : Health plans, business groups and health underwriters oppose this bill and state that the bill creates a near impossible burden-of-proof to demonstrate and may force insurers to decline more applicants. The California Association of Health Plans (CAHP) states that rescission is an important tool based on contract law that ensures that, if applicants misrepresent their health status at the signing of the contract for coverage, the health plan has recourse to rescind their coverage due to a "lack of the meeting of the minds," which AB 2 Page 8 is a requirement for a contract. CAHP believes that, by creating an intentional standard for every rescission case, this bill will overturn the Hailey decision, and result in increased litigation. CAHP also believes that, by requiring an intentional standard, the bill will create a disincentive for plans and insurers to enroll customers, since the legal standard for rescinding coverage has been raised, and will have devastating effects on the individual market. CAHP and other groups point out that only one-tenth of one percent of individual policies are rescinded, yet it only takes a few people misrepresenting their health status to increase costs for everyone, as just five percent of beneficiaries account for more than half of health care costs. In addition to the objections stated above, 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. Anthem Blue Cross states that the bill creates a standard for underwriting that has no clear endpoint. ASSEMBLY FLOOR : AYES: Ammiano, Arambula, Beall, Blumenfield, Brownley, Buchanan, Caballero, Charles Calderon, Carter, Chesbro, Coto, Davis, De La Torre, De Leon, Eng, Evans, Feuer, Fong, Fuentes, Furutani, Hayashi, Hernandez, Hill, Huffman, Jones, Krekorian, Lieu, Bonnie Lowenthal, Ma, Mendoza, Monning, Nava, John A. Perez, V. Manuel Perez, Portantino, Price, Ruskin, Salas, Saldana, Skinner, Swanson, Torlakson, Torres, Torrico, Bass NOES: Adams, Anderson, Tom Berryhill, Blakeslee, Conway, DeVore, Duvall, Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman, Harkey, Huber, Jeffries, Knight, Logue, Miller, Niello, Nielsen, Silva, Smyth, Audra Strickland, Tran, Villines NO VOTE RECORDED: Bill Berryhill, Block, Cook, Emmerson, Galgiani, Hall, Nestande, Solorio, Yamada DLW:mw 9/1/09 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** AB 2 Page 9