BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 108
Assemblymember Hayashi
As Amended June 26, 2009
Hearing Date: July 14, 2009
Health and Safety Code; Insurance Code
KB:jd
SUBJECT
Individual Health Care Coverage
DESCRIPTION
This bill would prohibit health plans and health insurers, after
24 months from the issuance of an individual health plan
contract or health insurance policy, from rescinding the
individual coverage, and from canceling, limiting, or raising
premiums in a contract or policy, due to any omissions,
misrepresentations, or inaccuracies in the application form.
This bill would also provide that nothing in this bill would
limit a plan's remedies upon a showing of willful
misrepresentation.
BACKGROUND
The individual health insurance market, which covers about nine
percent of insured Californians or seven percent of non-elderly
Californians, is made up of individuals and families who pay for
their own coverage, generally because group coverage is not
available or they are ineligible for publicly subsidized health
coverage. Persons often seek this type of coverage because they
are self-employed, early retirees, part-time employees, or have
"aged off" a parent's policy.
In California, health plans and insurers conduct medical
underwriting, the process of reviewing an applicant or
applicants' medical history to ascertain the financial risk
posed by the applicant or applicants. Each health plan has its
own underwriting guidelines in the individual market, which must
be filed with the California Department of Managed Health Care
(more)
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(DMHC), but are not publicly disclosed. Health plans and health
insurers in the individual market may deny an applicant health
insurance, limit a benefit package, or charge a higher premium,
based on the assessed level of risk. The plan or insurer may
also use a pre-existing condition provision or a waivered
condition provision to exclude coverage for up to 12 months,
subject to specified rules.
Rescission involves a determination by the health plan or health
insurer that the contract between the plan or insurer and
enrollee, subscriber, or policyholder never existed because of a
misrepresentation by the enrollee, subscriber, or policyholder
at the time of application, and that, therefore, any health care
services the enrollee, subscriber, or policyholder received
during the entire time of the contract are the responsibility of
the enrollee, subscriber, or policyholder. As a remedy,
rescission essentially places the parties back to their original
status prior to the execution of the contract, with premiums
refunded to the enrollee, and any health services paid for by
the plan owed by the enrollee.
Currently, different statutory provisions apply to health plans
under DMHC and health insurers under the California Department
of Insurance (CDI), related to rescission. Both statutory
provisions prohibit post-claims underwriting, defined as
rescinding, canceling, or limiting a plan contract due to a plan
or insurer'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, existing law provides that the prohibition against
post-claims underwriting does not limit a plan's remedies upon a
showing of willful misrepresentation. The Insurance Code does
not have a parallel provision regarding willful
misrepresentation. A recent Court of Appeal opinion (see Hailey
below), issued in December 2007, interprets the post-claims
underwriting statute and a plan's right to rescission.
In 2007, DMHC initiated a non-routine investigation of the five
largest plans regulated under the Knox-Keene Health Care Service
Plan Act of 1975 (Knox-Keene) related to rescissions of health
coverage. The DMHC investigation found the following:
-------------------------
| Number of Coverage |
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| Rescissions |
| Five Largest Knox-Keene |
| Plans |
-------------------------
|-----------+-------------|
|2002 |882 |
|-----------+-------------|
|2003 |743 |
|-----------+-------------|
|2004 |1,436 |
|-----------+-------------|
|2005 |1,536 |
|-----------+-------------|
|2006 |302 |
-------------------------
-------------------------
|Source: |
|DMHC |
-------------------------
DMHC has taken an aggressive enforcement stance with respect to
rescissions, and in 2008, reached agreements with Anthem Blue
Cross, Blue Shield, Health Net, Kaiser, and PacifiCare requiring
them to pay fines ranging from $50,000 to $10 million, with
additional fines to be levied if corrective action plans for
rescission policies and practices going forward are not
submitted by the health plans, approved by DMHC and properly
implemented. The settlements require the plans to offer health
care coverage to former members whose policies they rescinded or
canceled over the past four years, regardless of the former
member's health condition, and to reimburse the affected
consumers for out-of-pocket costs incurred after the policies
were rescinded. DMHC ordered the plans to use a fair outside
arbiter selected by the DMHC to review every rescission
uncovered in the investigations and determine remedies, such as
payment of medical care and premiums. Reimbursement for health
care services will be limited to those who are found by the
arbiter to have been wrongly rescinded. According to DMHC, by
the end of February 2009, of the 3,300 enrollees who were
identified as having coverage rescinded and required to be
reinstated under the settlements, all had been offered coverage.
Of those offered reinstatement, 170 had re-started coverage (5
percent) and 293 (8 percent) have requested reimbursement under
the terms of the settlement. DMHC is reportedly in the process
of reviewing and finalizing the health plan corrective action
plans related to rescission policies and practices going
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forward.
In late 2008 and early 2009, CDI reached agreements with Anthem
Blue Cross, Blue Shield, and Health Net related to the insurers'
rescission of health insurance products subject to CDI's
jurisdiction. As part of the CDI settlements, insurers agreed
to offer coverage to consumers whose individual, family, or
short-term health policies were previously terminated without
subjecting them to medical underwriting or exclusions for
pre-existing conditions, and to pay any medical expenses that
would have been covered under the rescinded policies if those
costs had not already been covered by another source. The CDI
agreements do not allow the insurers to use the validity of the
rescission as a defense to any claim for reimbursement of
medical expenses. In the CDI settlements, insurers agreed to an
expedited independent arbitration process to resolve any
disputes regarding the reimbursements for medical expenses, such
as coverage issues or medical necessity determinations. As part
of the settlements with CDI, insurers also agreed to make
changes to the application forms, underwriting process, agent
and broker training, and notification to consumers and providers
of an investigation regarding information in the application and
oversight of its claims handling. Insurers also agreed to
establish an independent third-party review process for
rescissions going forward.
Under the agreements with both DMHC and CDI, rescinded patients
can accept new coverage without forfeiting any legal rights, but
they must execute a release of any and all rescission-related
claims against plans or insurers in order to receive
reimbursement for out-of-pocket medical expenses.
In addition to the settlements with regulators, the Los Angeles
City Attorney has separately sued several insurers within the
city's boundaries. There have also been multiple individual and
class action lawsuits brought against insurers by individuals
and families who argue that their policies were improperly
rescinded or canceled.
This bill was approved by the Senate Committee on Health on June
17, 2009.
CHANGES TO EXISTING LAW
Existing law provides for regulation of health plans by DMHC
under the Knox-Keene Health Care Service Plan Act of 1975
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(Knox-Keene) and for regulation of health insurers by CDI under
the Insurance Code.
Existing law prohibits health plans and health insurers from
engaging in "post-claims underwriting" defined as rescinding,
canceling, or limiting a plan contract due to a plan or
insurer's failure to complete medical underwriting and to
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,
existing law provides that the prohibition against post-claims
underwriting does not limit a plan's remedies upon a showing of
willful misrepresentation. (Health & Saf. Code Sec. 1983.3.)
Existing law prohibits health plans and health insurers from
rescinding or modifying an authorization for services after the
service is rendered, for any reason, including, but not limited
to, the plan's subsequent rescission, cancellation, or
modification of the enrollee or insured's contract, or the plan
or insurer's subsequent determination that the health plan or
health insurer did not make an accurate determination of the
enrollee or insured's eligibility. (Health & Saf. Code Sec.
1371.8.)
Existing law requires applications for health plan contracts and
health insurance policies to conform to certain standards for
underwriting, including use of 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 that is reasonable and necessary for
medical underwriting purposes. (Health & Saf. Code Sec.
1389.1.)
Existing law , establishes a two-year contestability period for
disability insurance, long-term care insurance, and Medicare
supplement policies, during which an insurer may rescind an
insurance policy if specified conditions are met. (Health &
Saf. Code Sec. 1358.8; Ins. Code Sec. 10350.2.)
Existing law provides that an enrollment in, or a subscription
to, a health plan contract may not be canceled or refused
renewal except for failure to pay the premium, fraud or
deception in the use of the services or facilities, or for other
good cause, as is agreed upon in the contract between the plan
and a group or the subscriber. Existing law provides that an
enrollee or subscriber who alleges that an enrollment or
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subscription has been canceled or refused renewal because of the
enrollee's or subscriber's health status or requirements for
health care services, may request a review by the director, and
creates a process for that review. (Health & Saf. Code Sec.
1365.)
This bill would prohibit health plans and health insurers, after
24 months from the issuance of an individual health plan
contract or health insurance policy, from rescinding the
individual coverage, and from canceling, limiting, or raising
premiums in a contract or policy, due to any omissions,
misrepresentations, or inaccuracies in the application form.
This bill would also provide that nothing in this bill would
limit a plan's remedies upon a showing of willful
misrepresentation.
COMMENT
1.Stated need for the bill
According to the author, news reports and lawsuits have
identified families saddled with thousands of dollars in medical
debt for treatment they believed was covered. In many cases,
individual health coverage was rescinded by 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 only 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
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.
2.Legal standard for rescission
In 2000, Cindy Hailey applied to Blue Shield for herself, her
husband, Steve, and their son, even though her new employer
offered coverage, because the employer's plan did not include
the family's doctor. Cindy completed an individual application
and Blue Shield issued a policy at its preferred rate in
December 2000. In February 2001, Steve Hailey was hospitalized,
prompting Blue Shield to investigate the application. In June
2001, Blue Shield rescinded their coverage based on the Haileys'
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failure to disclose medical information, and later alleged that
the Haileys had willfully misrepresented information about her
husband's medical history, which Blue Shield uncovered in an
investigation it initiated when Steve Hailey incurred
significant medical bills following a serious automobile
accident. Cindy Hailey asserted that she did not realize the
application called for information about her dependents and
thought she was only being asked to provide information on her
own medical issues. Without health coverage, Steve Hailey
experienced significant health consequences and permanent
disability. The trial court granted summary judgment in favor
of Blue Shield and ordered the Haileys to pay back more than
$100,000 in medical costs to Blue Shield.
In Hailey v. California Physicians' Service (2007) 158
Cal.App.4th 452, the Court of Appeals reversed the trial court
holding that Health and Safety Code Section 1389.3, the
post-claims underwriting statute, precludes a health services
plan from rescinding a contract for material misrepresentation
or omission unless the plan can demonstrate the
misrepresentation or omission was willful, or it had made
reasonable efforts to ensure the subscriber's application was
accurate and complete as part of the precontract underwriting
process. However, the Hailey decision failed to articulate what
constitutes "reasonable efforts" to ensure that an application
is accurate and complete as part of the pre-contract
underwriting process or what constitutes resolution of all
reasonable questions arising from written information, as the
statutory prohibition on post-claims underwriting requires.
Blue Shield appealed the decision to the California Supreme
Court, which refused to hear the case, effectively making the
interpretation of the post-claims underwriting statute in the
Hailey decision the applicable law relating to rescission under
Knox-Keene. Thereafter the case returned to Orange County
Superior where, on May 28, 2009, a judge ruled that Blue Shield
had acted properly, after the Haileys stipulated that they had
lied about Steve Hailey's preexisting condition to obtain
coverage.
The Hailey decision seemingly allows a health plan to rescind on
a standard less than willful misrepresentation, and has created
ambiguity as to what constitutes a legal rescission under
Section 1389.3. Health plans and insurers could argue (and
reportedly have been) that they are allowed to rescind so long
as they conducted "reasonable efforts" to ensure that the
application was accurate and complete. This standard is much
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lower than the "willful misrepresentation" and raises serious
concerns for patients.
The DMHC appears to have followed the "willful
misrepresentation" standard prior to the Hailey decision. As
reported by the LA Times on January 29, 2007, Director of DMHC,
Cindy Ehnes' stated that the DMHC's position was that the law
banned retroactive rescission unless a health plan could show
that a policyholder intentionally lied about his health history
on his application for coverage. (See Lisa Girion, "Heath plan
review may be intensified; the state's top HMO regulator calls
for outside oversight of insurers' attempts to drop
policyholders," Los Angeles Times, January 30, 2007.)
Further, the DMHC submitted an amicus curiae brief to the Court
of Appeals for the Hailey decision, which stated that:
Because of the catastrophic consequences of losing health care
coverage, and in furtherance of the consumer protection
purpose of the Knox-Keene Act, the Legislature enacted
[Section] 1389.3 ? [which] expressly prohibits post-claims
underwriting and allows a health plan to rescind coverage only
in cases where it has met its burden of demonstrating that the
consumer willfully misrepresented his or her health history.
3.Governor's proposal and statements on rescission
In late summer 2008, Governor Schwarzenegger provided to the
Legislature proposed legislative language related to rescission,
which, among other things, required standardized application
questions for health plans and insurers to use, and imposed
requirements and standards relating to the completion of medical
underwriting, and standards for rescission of a health plan
contract or health insurance policy during the first two years
following the issuance of the policy. The Governor's proposal
also would have prohibited plans and insurers from rescinding,
canceling, limiting, or raising premiums in a contract or policy
due to any omissions, misrepresentations, or inaccuracies in the
application form, whether willful or not, or for any reason,
after two years, and did not include an exception for fraud.
This proposal was never included in legislation, but was cited
in the Governor's veto message of AB 1945 (De La Torre), which
provided more expansive prohibitions, standards, and processes
related to rescission. Specifically, in the veto message, the
Governor stated, "My proposal contained a two-year lookback
protection that prevented plans from rescinding or cancelling
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after two years. This bill [AB 1945] does not contain that
protection."
4.Bill would implement a weaker standard than the Governor's
proposal
As heard in the Senate Committee on Health, this bill would have
prohibited health plans and health insurers, after 18 months
from the issuance of an individual health plan contract or
health insurance policy, from rescinding the individual coverage
for any reason, and from canceling, limiting, or raising
premiums in a contract or policy, due to any omissions,
misrepresentations, or inaccuracies in the application form,
whether willful or not. Recent amendments to the bill increased
the time frame to 24 months, and provide that nothing in the
bill is intended to limit a plan's remedies upon a showing of
willful misrepresentation.
As previously discussed, the Hailey decision seemingly allows
health plans and insurers to rescind as long as they conduct
"reasonable efforts" to ensure that applications are accurate
and complete. This bill would prohibit health plans and
insurers from rescinding or canceling a plan after 24 months
unless there is a "willful misrepresentation." While this is
arguably an improvement over the Hailey standard for individuals
who have coverage or insurance for more than 24 months, it is
much weaker than its prior version, which would have prohibited
rescissions after the 18 months, whether or not there was a
willful misrepresentation.
Notably, the current version of the bill is also weaker than the
Governor's own health care proposal which would have prohibited
plans and insurers from rescinding, canceling, or raising
premiums after two years due to omissions, misrepresentations,
or inaccuracies in the application form, whether or not they
were willful. As mentioned in the previous comment, the
Governor referenced this part of his health care proposal in his
veto message of AB 1945, and pointed out that AB 1945 lacked the
this specific protection on consumers. This bill is intended to
protect consumers from open-ended exposure to losing health
coverage, while giving insurers a reasonable amount of time to
conduct thorough underwriting on individuals' applications.
While the extension to 24 months arguably is a reasonable time
frame for insurers and health plans to discover and investigate
errors on applications, allowing rescission even after the 24
months due to willful misrepresentations arguably still leaves
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consumers with open-ended exposure to losing their health care
coverage. Accordingly, this committee may wish to consider
whether this bill should be amended to remove the exception
allowing rescissions and cancellations upon a showing of willful
misrepresentation, and return to the stronger prohibition in the
prior version of the bill. The following amendments would
achieve this goal:
Suggested amendments :
On page 2, line 5, after the second "contract" insert "for any
reason"
On page 2, line 9, after "form" insert "whether willful or not"
On page 2, line 14, after "law" strike "This section shall not
limit a"
On page 2, strike line 15
On page 2, line 20, after the second "policy" insert "for any
reason"
On page 3, line 1, after "form" insert "whether willful or not"
On page 3, line 6, strike "This section shall not limit a
health"
On page 3, strike line 7
5. Suggested clarifying amendment
This bill was amended in the Senate Committee on Health to
clarify that plans and insurers must still follow applicable law
and standards for rescissions, cancellations, and raising
premiums in existing law. The following is a suggested
amendment that would make these provisions more clear and
concise. The substance of the language would remain the same
so as to ensure that plans and insurers following existing law
within the initial 24 month period.
On page 2, line 9, strike "Nothing in this"
On page 2, strike lines 10-13 inclusive
On page 2, line 14, strike "contrary to other applicable law"
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and insert:
"Nothing in this section shall be construed to alter existing
law that otherwise applies to a health care service plan within
the first 24 months following the issuance of an individual
health care service plan contract."
On page 3, line 1 strike "Nothing in this section"
On page 3, strike lines 2-5 inclusive
On page 3, line 6, strike "to other applicable law" and insert:
"Nothing in this section shall be construed to alter existing
law that otherwise applies to a health insurer within the first
24 months following the issuance of an individual health
insurance policy."
6. Opposition
In opposition to the current version of the bill, Consumer
Attorneys of California (CAOC) write that the amendments of June
26 undermine the original intent of the bill by permitting an
exception that permits plans to rescind at any time for willful
misrepresentations. CAOC states that rescissions hurt patients
when they are in need of health care and most vulnerable. CAOC
further states that, at some point, a patient should be able to
take comfort in knowing that his or her coverage will not be
suddenly taken away.
In opposition to the prior version of this bill, the California
Association of Health Plans (CAHP) writes that this bill would
bar rescission after 18 months regardless of whether the
enrollee misrepresented, omitted, or lied about an existing
health condition. CAHP states that rescission is an important
tool based on basic contract law that ensures that if applicants
misrepresent their health status at the signing of that
contract, then the health plan has the right to later rescind
coverage due to a "lack of meeting of the minds." CAHP argues
that this bill will lead to fraud and abuse because potential
enrollees will understand that they can falsify applications for
coverage and, if they can avoid detection for 18 months, will
secure coverage for a major medical condition. The Association
of California Life and Health Insurance Companies and CAHP argue
that while only one tenth of one percent of individual policies
are rescinded, because only five percent of beneficiaries
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account for more than half of health care expenditures, it takes
only a few people misrepresenting themselves to increase the
premiums for everyone.
Also in opposition to a prior version of this bill, the
California Association of Health Underwriters (CAHU) states that
applicants have incentives to omit information or lie on
applications in order to get insurance coverage. CAHU has found
that applicants who want coverage will bend the truth, have
short periods of amnesia and omit facts, lie, or genuinely
cannot remember. In these cases of misrepresentation, if the
information had been disclosed there would have been no contract
for coverage issued. CAHU writes that since this bill would
remove the fraudulent provision of current law and reduce the
time frame that a health plan has to uncover the fraud, this
bill would create a moral hazard and expose those who were
forthcoming on their applications to higher premiums to cover
the costs of those who were not.
Support : (to the current version of the bill) California
Medical Association; AIDS Healthcare Foundation; Osteopathic
Physicians and Surgeons of California; (to a prior version of
the bill) California Chiropractic Association; American
Federation of State, County and Municipal Employees; California
Alliance for Retired Americans; California Association of
Marriage and Family Therapists; Area Agency on Aging of Lake &
Mendocino Counties; California Senior Legislature; Alliance of
California Autism Organizations; California Communities United
Institute; Congress of California Seniors; Health Access (if
amended)
Opposition : (to the current version of the bill) Consumer
Attorneys of California (unless amended); (to a prior version of
the bill) Association of California Life and Health Insurance
Companies; California Association of Health Plans; California
Association of Health Underwriters
HISTORY
Source : Author
Related Pending Legislation :
AB 2 (De La Torre) is substantially similar to AB 1945 (De La
Torre) of 2008 (see below), which was vetoed by Governor
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Schwarzenegger. AB 2 would impose specific requirements and
standards on health plans and health insurers related to
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
process related to a health plan or health insurer's decision to
cancel or rescind health care coverage. The bill would also
require a health plan or insurer to demonstrate intentional
misrepresentation or intentional material omission on the
application in order to rescind the plan contract or health
policy. This bill is pending hearing in the Senate Committee on
Health.
AB 730 (De La Torre) would increase the maximum civil penalty
for health insurance post-claims underwriting from $118 per
violation to $5,000 per violation for insurers under the
jurisdiction of the Commissioner of the California Department of
Insurance (CDI) and requires the penalties and civil penalties
established to be determined at a hearing conducted in
accordance with the Administrative Procedures Act (APA). This
bill is pending hearing in the Senate Committee on Health.
Prior Legislation :
AB 1150 (Lieu, Chapter 188, Statutes of 2008) prohibits a health
plan or insurer from compensating any person retained, employed,
or contracted with, to review medical underwriting decisions
based on, or related to, the number of contracts, policies, or
certificates, or on the cost of services for a contract, policy,
or certificate, that the person has caused or recommended to be
rescinded, canceled, or limited, or the resulting cost savings
to the plan or insurer. AB 1150 also prohibits a plan or
insurer from setting performance goals or quotas based on the
number of persons whose health coverage is rescinded or any
financial savings to the plan or insurer associated with
rescission of coverage.
AB 1945 (De La Torre, 2008) would have imposed specific
requirements and standards on health plans and health insurers
related to the application forms, medical underwriting, and
notice and disclosure of rights and responsibilities for
individual coverage, including the establishment of an
independent external review process related to decisions to
cancel or rescind an individual's health care coverage. This
bill would have also required a health plan or insurer to
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demonstrate intentional misrepresentation or intentional
material omission on the application in order to rescind the
plan contract or health policy. AB 1945 was vetoed by Governor.
AB 2549 (Hayashi, 2008) would have prohibited health plans and
health insurers from rescinding a health plan contract or health
insurance policy after 18 months from the time the contract is
effective for any reason. This bill was held in the Senate
Appropriations Committee.
AB 2569 (De Leon, Chapter 604, Statutes of 2008), requires
health plans and health insurers to offer new coverage, or
continue existing coverage, for any individual whose coverage
was rescinded, other than the individual whose information led
to the rescission, within 60 days, without medical underwriting,
as defined. AB 2569 also establishes a duty for agents and
brokers selling individual health coverage products to assist
applicants in providing answers to health questions accurately
and completely, as specified.
ABX1 1 (Nunez, 2007) among its comprehensive health reform
provisions, would have prohibited health plans and insurers from
rescinding any individual plan contract or policy after it is
issued and would have prohibited plans and insurers from
compensating individuals employed by, or contracted with, the
plan or insurer, or from setting any performance goals or
quotas, based on the number of persons for whom coverage is
rescinded or the financial savings to the plan or insurer
associated with the rescission of coverage. This bill failed
passage in the Senate Health Committee.
AB 1324 (De La Torre, Chapter 602, Statutes of 2007) clarifies
and makes specific provisions of law that currently prohibit
health plans and health insurers, where the plan or insurer
authorizes a specific type of treatment by a health care
provider, from rescinding or modifying the authorization after
the provider renders the health care service in good faith and
pursuant to the authorization.
AB 1100 (Willie Brown, Chapter 1210, Statutes of 1993) enacted
the Health Insurance Access and Equity Act which requires
applications for health plan contracts or 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
prohibits post-claims underwriting.
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Prior Vote :
Assembly Health Committee (Ayes 13, Noes 6)
Assembly Appropriations Committee (Ayes 11, Noes 5)
Assembly Floor (Ayes 48, Noes 29)
Senate Health Committee (Ayes 7, Noes 3)
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