BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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                                 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.
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           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.








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          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  







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             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,  







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          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







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          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  







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          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  







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          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

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