BILL ANALYSIS                                                                                                                                                                                                    





                                                                  AB 2

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          GOVERNOR'S VETO
          AB 2 (De La Torre)
          As Amended August 17, 2009
          2/3 vote

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          |ASSEMBLY:  |45-26|(June 3, 2009)  |SENATE: |24-13|(September 8,  |
          |           |     |                |        |     |2009)          |
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          |ASSEMBLY:  |49-26|(September 10,  |        |     |               |
          |           |     |2009)           |        |     |               |
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           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  










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            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.











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          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  










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            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  










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               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  










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               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 


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