BILL ANALYSIS AB 2 Page 1 GOVERNOR'S VETO AB 2 (De La Torre) As Amended August 17, 2009 2/3 vote ----------------------------------------------------------------- |ASSEMBLY: |45-26|(June 3, 2009) |SENATE: |24-13|(September 8, | | | | | | |2009) | ----------------------------------------------------------------- ----------------------------------------------------------------- |ASSEMBLY: |49-26|(September 10, | | | | | | |2009) | | | | ----------------------------------------------------------------- Original Committee Reference: HEALTH 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 carriers to complete medical underwriting prior to issuing a health plan contract or health insurance policy, and establishes the elements of a reasonable investigation of the AB 2 Page 2 applicant's health history information, as specified. 3)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. 4)Requires carriers to send a copy of a written application to an individual within ten days after coverage is issued and to include a specified notice. 5)Prohibits, after an individual contract or policy is issued, 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 as specified 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 4) above. 6)Specifies that, notwithstanding the prohibition against rescission in this bill, coverage may be canceled or not renewed for failure to pay the premium as provided in existing law. AB 2 Page 3 7)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. Establishes specific timelines and notice requirements related to the investigation. 8)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 determination upholding the decision to cancel or rescind. 9)Establishes, commencing January 1, 2011, 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. 10)Establishes the rules for operation of the IRP, requires DMHC and CDI to contract or otherwise arrange for one or more independent not-for-profit organizations to conduct IRPs, and sets the standards for selection of the review organizations, including conflict of interest standards. 11)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. 12)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 AB 2 Page 4 implemented, as specified. 13)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. 14)Requires, on and after January 1, 2010, 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. The Senate amendments : 1)Require that revenues from administrative penalties imposed on carriers for prolonging an independent review of a rescission, or for failure to timely implement an independent review decision, be deposited into the Major Risk Medical Insurance Fund, to be used, upon appropriation to the Legislature, for the Major Risk Medical Insurance Program. 2)Exempt specialized dental health plans from the provisions of this bill. AS PASSED BY THE ASSEMBLY , this bill was substantially similar to the version passed by the Senate. FISCAL EFFECT : According to the Senate Appropriations Committee, special fund costs for CDI and DMHC to promulgate regulations jointly, develop and contract for independent review services, develop standardized application questions, receive and review applications, and to otherwise implement and enforce this bill would be approximately $100,000 annually for CDI and $1 million to $3.4 million in start-up costs and $135,000 ongoing for DMHC. GOVERNOR'S VETO MESSAGE : I have repeatedly indicated I would support a bill that provides strong statutory protections for consumers against inappropriate rescissions by health AB 2 Page 5 plans. However, this bill continues to have a provision that benefits trial lawyers rather than consumers. I remain comfortable sending this bill back for a second time without my signature because of the strong consumer protections the Department of Managed Health Care and Department of Insurance have successfully implemented over the past two years. The number of rescissions industry-wide has decreased significantly since 2005. Millions of dollars have been assessed against health plans and insurers; corrective action plans have been received and approved; revised consumer disclosures have been reviewed for literacy, consistency and compliance with the settlement agreements; and lastly, the two departments are working together to ensure that all health plans meet the same standards of fairness and full disclosure. The market has changed and it is because of my Administration's strong action in this area. The precedent-setting 4th District Court of Appeals decision in Hailey v. Blue Shield relied heavily on the Department of Managed Health Care's amicus brief. The court's reliance on this brief speaks to the strong work of the Department and the balance required when enacting consumer protections and ensuring access to the individual health plan market. I have no interest in overturning that appellate decision and the definitive interpretation of the post-claims underwriting statute. In addition, I have signed targeted measures that prohibit plans from financially incentivizing their employees to rescind or cancel policies; require plans to offer coverage to families when the individual on the contract has been rescinded or cancelled; and most recently, I have signed Assembly Bill 108 that will prohibit a health plan from rescinding or canceling a contract after 24 months. I would request that the Legislature send me a bill AB 2 Page 6 that codifies the Hailey decision, as I have asked for since 2008. When that occurs, I will be happy to sign that bill. Analysis Prepared by: Marjorie Swartz / HEALTH / (916) 319-2097 FN: 0003415