BILL ANALYSIS                                                                                                                                                                                                    






                                 SENATE HEALTH
                               COMMITTEE ANALYSIS
                        Senator Elaine K Alquist, Chair


          BILL NO:       AB 684                                       
          A
          AUTHOR:        Ma                                           
          B
          AMENDED:       June 18, 2009
          HEARING DATE:  June 25, 2009                                
          6
          CONSULTANT:                                                 
          8
          Park/                                                       
          4
                                        

                                     SUBJECT
                                         
              Claim reimbursement: late payments: dental services

                                     SUMMARY  

          Increases the interest rate health plans and health  
          insurers (collectively, carriers) covering dental services  
          must pay for uncontested claims and claims that the carrier  
          determines to be payable that are not reimbursed within 60  
          working days, as specified, and requires the interest that  
          accrues to be paid to the carriers' respective regulators  
          for enforcement of specified laws, upon appropriation.  
          Requires carriers offering dental coverage to follow a  
          specified process for requesting additional information  
          related to a claim. 


                             CHANGES TO EXISTING LAW  

          Existing law:
          Existing law requires the regulation of health plans by the  
          Department of Managed Health Care (DMHC) and the regulation  
          of health insurers by the California Department of  
          Insurance (CDI).

          Existing law requires carriers to reimburse uncontested  
          claims no later than 30 working days after the claim is  
                                                         Continued---



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          received (or 45 working days if the carrier is a health  
          maintenance organization (HMO)). Existing law requires an  
          uncontested claim that has not been paid in the required  
          time to accrue interest at a rate of 15 percent per year  
          for health plans and 10 percent per year for health  
          insurers, beginning with the first calendar day after the  
          30- or 45-working day period.

          Existing law requires carriers to notify claimants in  
          writing that a claim is contested or denied, within 30  
          working days after receipt of a claim (or 45 days, if the  
          carrier is an HMO), and requires the notice to identify the  
          portion of the claim that is contested and the specific  
          reasons for contesting the claim. Existing law provides  
          that a claim, or portion thereof, is reasonably contested,  
          in the case that the carrier has not received the completed  
          claim and all the "information necessary to determine payer  
          liability for the claim," as defined, or has not been  
          granted reasonable access to information concerning  
          provider services. Existing law requires carriers to  
          complete reconsideration of the claim within 30 days (or if  
          the carrier is an HMO, 45 days) after receipt of additional  
          information. 

          Existing law provides that, if a carrier has received all  
          of the information necessary to determine payer liability  
          for a contested claim and has not reimbursed a claim it has  
          determined to be payable within 30 working days of the  
          receipt of that information (or 45 working days if the  
          carrier is an HMO), interest payable shall accrue at a rate  
          of 15 percent per year for health plans and 10 percent per  
          year for health insurers, beginning with the first calendar  
          day after the 30- or 45-working day period.

          Existing law provides that fines and administrative  
          penalties collected for health plan violations of the  
          Knox-Keene Act (which excludes health insurers) shall be  
          deposited into a Managed Care Administrative Fines and  
          Penalties Fund, for transfer into the Medically Underserved  
          Account for Physicians and the Major Risk Medical Insurance  
          Fund, as specified.

          Existing law prohibits health plans from engaging in an  
          unfair payment pattern, defined as: 1) engaging in a  
          demonstrable and unjust pattern, as defined by DMHC, of  




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          reviewing or processing complete and accurate claims that  
          result in payment delays; 2) engaging in a demonstrable and  
          unjust pattern, as defined by DMHC, of reducing the amount  
          of payment or denying complete and accurate claims; 3)  
          failing on a repeated basis to pay the uncontested portions  
          of a claim within the timeframes specified in current law;  
          or, 4) failing on a repeated basis to automatically include  
          the interest due on claims. Existing law allows the  
          director of DMHC, upon a final determination that a health  
          plan has engaged in an unfair payment pattern, to impose  
          monetary penalties, and require the health plan to pay  
          complete and accurate claims, as defined, from the provider  
          for a period of up to three years. 

          Existing law defines unfair methods of competition and  
          unfair and deceptive acts or practices in the business of  
          insurance, and includes in this definition, not attempting  
          in good faith to effectuate prompt, fair, and equitable  
          settlements of claims in which liability has become  
          reasonably clear.  Existing law provides that any person  
          who engages in any unfair method of competition or any  
          unfair or deceptive act or practice in the business of  
          insurance is liable to the state for a civil penalty to be  
          fixed by the commissioner, not to exceed five thousand  
          dollars ($5,000) for each act, or, if the act or practice  
          was willful, a civil penalty not to exceed ten thousand  
          dollars ($10,000) for each act.  Existing law allows the  
          commissioner to have the discretion to establish what  
          constitutes an act.  Existing regulation provides that  
          specified claims settlement practices, when either  
          knowingly committed on a single occasion, or performed with  
          such frequency as to indicate a general business practice,  
          are considered to be unfair claims settlement practices and  
          are prohibited.

          This bill:
          This bill would require health plans covering dental  
          services (health plans), health insurers covering dental  
          services (health insurers), and specialized health plans  
          and health insurers covering dental services (dental  
          plans), collectively referred to as "dental carriers," to  
          pay interest at the rate of 20 percent per year on an  
          uncontested claim that is not reimbursed within 60 working  
          days after receipt, and 25 percent per year on an  
          uncontested claim that is not reimbursed within 90 working  




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          days after receipt. The bill would require interest to  
          begin with the first calendar day after the 60-working day  
          period, or 90-working day period, respectively. The bill  
          would also require these increased interest rates apply  
          when dental carriers have received all of the information  
          necessary to determine payer liability for a contested  
          claim, and the dental carrier has not reimbursed the claim  
          within these additional time frames. 

          The bill would require that interest that accrues in excess  
          of 15 percent per year for health plans and specialized  
          health plans covering dental services, and 10 percent per  
          year for health insurers and specialized health insurance  
          policies covering dental services, to be paid to each  
          carrier's respective regulator for enforcement of specified  
          claims reimbursement requirements in law, upon  
          appropriation.

          The bill would further require that, for dental carriers,  
          if a claim or portion thereof is contested on the basis  
          that the dental carrier has not received all information  
          necessary to determine payer liability, the dental carrier  
          must include a written request for the necessary  
          information and a clear and accurate explanation of the  
          necessity for that information within the notice that is  
          already required in current law for carriers to notify  
          claimants that a claim is contested. The bill would require  
          the dental carrier to acknowledge receipt of any  
          information requested by the dental carrier, within two  
          working days of receipt, if the claimant submits the  
          information electronically, or 15 working days after  
          receipt, if the claimant submits the information in paper  
          form. The bill would require dental carriers to process or  
          deny the claim, or portion thereof, within the timeframe  
          specified under current law. 
          

                                  FISCAL IMPACT  


          According to the Assembly Appropriations Committee, the  
          bill would result in minor absorbable workload to DMHC and  
          CDI to continue oversight of requirements regarding prompt  
          payment by health plans and insurers. The committee  
          analysis notes that any interest payments required by  




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          dental health plans and insurers under provisions of this  
          bill are minor. For example, a claim of $334 dollars not  
          paid in a timely manner would require interest payments of  
          18.3 cents per day for a penalty for payment between 61 and  
          90 days and 23 cents per day for a penalty of payment after  
          90 days. 



                            BACKGROUND AND DISCUSSION  

          Author's statement
          According to the author, despite the penalties for late  
          payments on claims in current law, delays in claim  
          reimbursements continue to be experienced.  The author  
          notes that, among all third-party payer issues that the  
          California Dental Association (CDA) hears about from member  
          dentists, complaints about late payment on claims are the  
          most numerous.  The author points to internal CDA research,  
          which shows that, of claims that are not paid within 30  
          days, more than 60 percent are still unpaid after 60 days;  
          and, of all claims that are outstanding after 60 days, 82  
          percent are unpaid after 90 days.  The author highlights  
          additional internal CDA research, which found that, on  
          average, dental offices are carrying $7,887.00 in claims  
          that have not been paid within 60 days.

          The author notes that this bill leaves the penalty for  
          non-payment of claims from 30 to 60 days unchanged;  
          however, when a dental plan fails to pay a claim within 60  
          days, the author states that a higher penalty is justified,  
          and the penalty should be increased again when claims are  
          not paid within 90 days. The author believes that higher  
          late payment penalties provide a greater incentive for  
          dental plans to process and pay claims sooner, and not  
          allow claims to go outstanding for months.

          Dental claims - complaints and late payments
          According to the DMHC website, from 2002 through the  
          present, there have been 54 enforcement actions involving  
          late claims payment.  Of the 54, five involved dental plans  
          with a combined penalty of $74,000. DMHC's Office of  
          Provider Oversight reports 7,064 complaints received from  
          all providers during 2008. Of the 7,064 complaints, 48 were  
          from dental providers.  Of those 48 complaints, 16 dental  




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          provider complaints involved an issue of untimely payment.

          According to the California Dental Association,  
          extrapolating from numbers from the American Dental  
          Association's most recent Survey of Current Issues in  
          Dentistry, the average number of claims submitted by a  
          dental practice (regardless of type) to all payers per week  
          is 73.8, or 3,690 claims per year. According to the 2006  
          County Business Patterns report, U.S. Census Bureau, there  
          are 19,436 "dental establishments" in California (combining  
          both solo practices and group practices). Based on these  
          numbers, CDA believes that there are roughly 71.7 million  
          dental claims submitted each year in California.  However,  
          it is unclear how may of these claims are covered under  
          state law or regulation. (Some employer groups "self-fund"  
          the costs of health care, in essence acting as the insurer.  
           Such groups are not subject to the same state laws or  
          regulations pertaining to health plans, insurers, or  
          specialized health plans or health policies.)  Delta  
          Dental, which administers dental benefits for 17 million  
          Californians, processed 16 million claims for California  
          enrollees in 2008. 

          According to a survey conducted in February 2009 by the  
          California Dental Association, the sponsor of this measure,  
          which asked 29 dental offices how many claims were  
          outstanding, those offices reported a total 376 claims  
          worth $203,126 that were in the 31-60 day period, 159  
          claims worth $64,697 that were in the 61-90 day period, and  
          691 claims worth $164,038 that were over the 90-day period,  
          for a total of 1,226 claims worth $431,861 that had not  
          been paid within 30 days. 

          Prior legislation
          SB 1387 (Padilla), Chapter 403, Statutes of 2008,  
          establishes specific requirements for overpayment notices  
          sent by dental plans to dental providers.
          
          AB 1155 (Huffman) of 2008 would have required the director  
          of the Department of Managed Health Care, upon a final  
          determination that a health plan has underpaid or failed to  
          pay a provider in violation of the Knox-Keene prohibition  
          on an unfair payment pattern, to require the plan to pay  
          the provider not less than the amount owed plus interest as  
          well as pay an administrative penalty to the Managed Care  




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          Fund not less than the amount owed the provider plus  
          interest. Vetoed by the Governor.
          
          AB 1455 (Scott), Chapter 827, Statutes of 2000, bars health  
          plans from engaging in unfair payment patterns in the  
          reimbursement of providers.  AB 1455 additionally includes  
          a number of other provisions regarding payment practices of  
          health plans, including requiring health plans to make  
          their dispute resolution process available to  
          non-contracting providers. 

          Arguments in support
          The California Dental Association (CDA), the sponsor of  
          this measure, writes that the current penalty is too modest  
          to induce payers to pay claims on time, making the payment  
          of penalties simply a cost of doing business.  CDA  
          indicates it receives a significant number of calls from  
          its member dentists requesting assistance in dealing with  
          issues of late payment on non-disputed dental claims.  CDA  
          states dental offices consistently reported that while  
          routine dental procedures (such as cleanings, exams,  
          restorations) are processed within the legally required  
          period of time, higher cost treatments (such as extensive  
          crowns, bridges, and removable prosthetics) take longer to  
          be processed and paid.  CDA highlights that two dental  
          offices in particular have been struggling with $20,000 and  
          $30,000, respectively, in outstanding claims, which is a  
          significant financial burden to any small business.  CDA  
          argues this bill is a reasonable measure that will not  
          impact those dental plans working within the legally  
          required timeframe and only penalize those companies that  
          do not.

          The California Medical Association (CMA) writes that an  
          undue burden is placed on dental practices when uncontested  
          dental claims are paid late. CMA notes that, often times,  
          dentists, like physicians, cover the costs of the service  
          provided to the patient upfront, and when claims go unpaid,  
          practices run the risk of jeopardizing the cash flow of  
          their business.

          Arguments in opposition
          The California Association of Dental Plans (CADP) believes  
          that current law provides substantial specific penalties  
          for late penalties, and that the DMHC has mechanisms in  




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          place to review provider complaints and intervene when  
          appropriate. CADP notes that its member plans report that  
          uncontested late payments are often the result of errors by  
          dental office personnel, and that lack of technical  
          interface between the plan and providers, caused in some  
          cases by handwritten claims, slow down the reimbursement  
          process. CADP highlights that self-funded dental plans,  
          such as those sponsored by various corporations and labor  
          groups, are cited in sending late payments, but would not  
          be covered by this legislation. CADP also asserts that  
          there are a number of legal and administrative remedies,  
          including arbitration and mediation that are available to  
          settle private disputes about uncontested claims, and that  
          dentists and dental insurance plans should manage their  
          insurance relationships without state involvement.

          Delta Dental of California (DDC) states that, last year,  
          Delta Dental paid nearly 30 million commercial dental  
          claims and paid 99.995 percent of all uncontested claims in  
          compliance with prompt payment requirements. (The number of  
          claims processed for California totaled 16 million for  
          2008.)  DDC asserts that late dental claims are not a  
          problem meriting a legislative solution, existing law  
          already sufficiently discourages late payment of claims,  
          and that no justification exists for special, punitive  
          treatment of dental plans.  DDC points out that the  
          regulatory standard under DMHC is 95 percent compliance  
          with the claims payment requirement, providing support that  
          not all uncontested claims can, realistically, be paid on  
          time. DDC believes that collaboration between plans and  
          providers on a solution would be a more effective way to  
          reduce these late dental claims payments, which tend to  
          involve more complex procedures. As an example, DDC states  
          it would assign a special claims liaison to work with CDA  
          and its member dentists. 

          The Association of California Life and Health Insurance  
          Companies, likewise, believes that the California  
          Department of Insurance has sufficient authority to  
          penalize insurers who demonstrate a pattern of unfair  
          payments, and that dental insurers already have enough  
          incentive to pay uncontested claims on time.

          The DMHC and the Office of the Insurance Advisor, within  
          the State and Consumer Services Agency, state that this  




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          bill is unnecessary. DMHC states that it received just 16  
          complaints, or less than one percent of the total provider  
          complaints received by DMHC, in 2008 dealing with untimely  
          payments to dental providers.


                                  PRIOR ACTIONS

           Assembly Floor:     76-0
          Assembly Appropriations:15-0
          Assembly Health:    15-1

                                     COMMENTS
           
          1.Interest in excess of 10/15 percent per year goes to  
            regulators for specified enforcement. 
            The current language of the bill requires interest in  
            excess of the current 10-15 percent per year to go to  
            regulators for specified enforcement activities. SB 1379  
            (Ducheny), Chapter 607, Statutes of 2008, created a  
            separate fund to direct administrative fines and  
            penalties for transfer into the Medically Underserved  
            Account for Physicians and the Major Risk Medical  
            Insurance Fund. By earmarking these interest penalties  
            for a different purpose, this bill would depart from the  
            precedent set by SB 1379.  Additionally, the bill creates  
            an incongruity between the type of enforcement activities  
            that would be undertaken by DMHC and CDI, related to  
            these additional penalty funds. The author may wish to  
            consider whether to conform these additional penalties to  
            SB 1379, or align enforcement activities more closely  
            between the two regulatory entities.      

          2.Bill applies to claims from one category of provider. 
            While there is evidence of late payment of claims  
            involving dentists, there is no evidence to suggest that  
            the problem is any more prevalent for dentists than for  
            other types of providers. In fact, the evidence suggests  
            that late payment of claims may be less prevalent for  
            dentists than for other providers. Although the rate of  
            interest tied to late claims payment already varies,  
            depending on whether the carrier is regulated by DMHC or  
            CDI (such as 15 percent per year under the Health and  
            Safety Code, and 10 percent per year under the Insurance  
            Code), it is unclear why the state should apply different  




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            penalties on late payment of claims, depending on the  
            provider's area of specialty, such as dentists. The  
            author may wish to elaborate on the need for the  
            differential interest penalty schedule.

          3.Technical amendment.
            The reference on Page 8, lines 3, should read as follows:

                    (C) Upon receipt of all of the information  
                    requested pursuant
                    to this paragraph, the insurer shall process or  
                    deny the claim
                       within the timeframe specified in paragraph  
                  (2)  (1). 



                                    POSITIONS  
                                        
          Support:  California Dental Association (sponsor)
                    American Federation of State, County and  
          Municipal Employees, AFL-CIO
                    California Medical Association

          Oppose:  Association of California Life and Health  
          Insurance Companies 
                 California Association of Dental Plans 
                    Delta Dental of California
                 Department of Managed Health Care
                 Office of the Insurance Advisor

                                   -- END --