BILL ANALYSIS                                                                                                                                                                                                    






                        SENATE COMMITTEE ON BANKING, FINANCE,
                                    AND INSURANCE
                           Senator Ronald Calderon, Chair


          AB 745 (Coto)            Hearing Date:  July 1, 2009  

          As Amended: May 7, 2009
          Fiscal:             No
          Urgency:       No
          

           SUMMARY    Requires the third party administrator (TPA) of a  
          self-funded dental benefit plan to include a disclosure in the  
          explanation of benefits (EOB) document and benefit claim forms  
          which provides the contact information for the federal  
          Department of Labor (DOL), which regulates self-funded plans, in  
          the event the consumer has a payment dispute with the plan.
          
           
          DIGEST
            
          Existing Federal law

              1.   Federal Law, the Employee Retirement Income Security Act  
               of 1974, sets minimum standards for the regulation of any  
               private-sector plan, created when an employer or union  
               compensates employees in the form of pensions and other  
               benefits, including employer-sponsored health coverage. 

             2.   ERISA is basically a law of fiduciaries and trusts. Its  
               main purposes include making sure, within a voluntary  
               framework for the provision of employee benefits, that plan  
               sponsors follow through on promises to provide pensions and  
               other benefits, including health coverage.

             3.   As used under ERISA, "health plan" is a form of legal  
               entity which arises when an employer promises to provide  
               and pay for employee health benefits. Under ERISA, such  
               self-funded health plans can include multiple employer  
               welfare arrangements, as alternatives to health insurance  
               programs, health maintenance organizations, and preferred  
               provider organizations.

             4.   ERISA requires a Third Party Administrator (TPA) to  
               automatically provide to ERISA-plan participants a summary  




                                                                       
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               plan description providing information on the benefits  
               available, the rights of participants and beneficiaries in  
               the plan, how benefits are obtained, and the process for  
               appealing denied benefits.

             5.   ERISA includes a preemption clause that provides states  
               are forbidden from enforcing laws relating to  
               private-sector employee health benefit plans but can  
               regulate "the business of insurance".  


          Existing State Law
           
             1.   Provides for the regulation of health insurers by the  
               California Department of Insurance (CDI) and health plans  
               by the Department of Managed Health Care (DMHC).

             2.   Defines "administrator" as any person who collects any  
               charge or premium from, or who adjusts or settles claims  
               on, residents of this state in connection with life or  
               health insurance coverage and imposes specified obligations  
               pursuant to state law.  (The term "administrator" excludes  
               an employer acting on behalf of its employees or the  
               employees of one or more subsidiary or affiliated  
               corporations of that employer; a union on behalf of its  
               members and entities acting in various other specified  
               roles.)

             3.   Prohibits an administrator from acting as such without a  
               written agreement between the administrator and the  
               insurer, as specified.

             4.   Requires, pursuant to the written agreement in 2) above,  
               the payment to the administrator of any premiums or charges  
               for insurance by, or on behalf of, the insured to be deemed  
               to have been received by the insurer and prohibits the  
               payment of return premiums or claims by the insurer to the  
               administrator from being deemed payment to the insured or  
               claimant until such payments are received by the insured or  
               claimant. 

             5.   Requires the administrator to maintain adequate books  
               and records of all transactions between it, and insurers  
               and insured persons, as specified.

             6.   Requires the Insurance Commissioner to have access to  




                                                                       
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               the books and records of the administrator for the purpose  
               of examination, audit, and inspection.

             7.   Requires, where the services of an administrator are  
               utilized, the administrator to provide a written notice  
               approved by the insurer, to insured individuals, advising  
               them of the identity of and relationship among the  
               administrator, the policyholder or enrollee, and the  
               insurer. 

             8.   Directs an administrator who collects funds to identify  
               and state separately in writing to the person paying to the  
               administrator any charge or premium for insurance coverage  
               the amount of any such charge or premium specified by the  
               insurer for such insurance coverage.

             9.   Requires, by regulation, dental insurance policies  
               regulated by CDI and dental-only specialized health plans  
               regulated by DMHC to disclose in the evidence of coverage  
               the address and telephone number provided pursuant to the  
               policy or plan to which complaints from members are to be  
               directed and a description of the policy or plan's  
               grievance procedure.  



























                                                                       
          AB 745 (Coto), Page 4



          This bill

            1.  Directs the a Third Party Administrator of a self-funded  
              dental benefit plan organized pursuant to ERISA to include  
              in the Explanation of Benefit document provided to plan  
              participants and also in forms sent to participants in  
              response to claims for benefits the following disclosure: 

                     "This dental plan is self-funded and subject to  
                     compliance with the federal Employee Retirement  
                     Income Security Act (ERISA).  As such, it is not  
                     subject to consumer protection provisions of state  
                     law governing health care coverage for dental care.  
                     Any questions, appeals, or disputes arising from the  
                     payment of a submitted claim should be directed to  
                     the entity providing the coverage, or to the United  
                     States Department of Labor, Office of Participant  
                     Assistance. You can contact the Office of Participant  
                     Assistance at ____________."

           2.  Specifies that this bill only applies to a TPA for a  
              self-funded dental benefit plan otherwise subject to the  
              jurisdiction of the federal government.

           3.  Specifies that the plan administrator shall insert in the  
              blank in the above disclosure the appropriate number for the  
              Office of Participant Assistance.

           4.  Makes a legislative finding that regulating TPAs pursuant  
              to this bill constitutes a regulation of insurance within  
              the meaning of the ERISA exemption from preemption.



           COMMENTS

          1.  Purpose of the bill  According to the California Dental  
              Association, the sponsor of AB 745, health benefit plans in  
              California are regulated by one of three agencies: the State  
              Department of Managed Health care, the State Department of  
              Insurance, or the U.S. Department of labor in the case of  
              self-funded plans operating under the authority of the  
              federal ERISA law.  State law requires third party  
              administrators regulated by the state to include a  
              disclosure on their explanation of benefits documents  
              concerning the state agency that regulates the plan along  




                                                                       
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              with a contact number.  However, ERISA-regulated plans are  
              not required to disclose the fact of their regulation nor do  
              they typically provide a contact number of the federal  
              regulatory agency, thus making it difficult for patients or  
              providers to know whereto pursue assistance with disputes.

          2.  The sponsors state that the public, providers and regulatory  
              bodies will be materially aided by the step of including  
              this information as part of a TPA's duty under California  
              law. As explained by the CDA, the mandate that a California  
              licensed TPA simply disclose to covered persons and  
              claimants that their plan and rights are regulated by  
              federal law, rather than by state law, will result in  
              pursuing any appeal on payment disputes along the proper  
              path and in the right forum, with the least waste of effort,  
              dollars and time.

          3.  The CDA states the current system of notification for those  
              plans regulated by ERISA is a source of inefficiency in  
              terms of directing patients toward the process of resolving  
              payment disputes.  Immediate information provided on the EOB  
              as to whether or not the laws of the state of California  
              apply to that particular plan will allow patients,  
              providers, and regulators who receive calls from patients,  
              to determine quickly where the appeal rights of the consumer  
              reside.  In short, this bill will save patients, dental  
              office staff and state regulators time in determining the  
              patients' path of appeal.

          4.  CDA cites the example that patients look to their providers  
              to resolve issues of payment disputes.  Dental office staff  
              spends a great deal of time attempting to resolve these  
              issues for their patients according to the CDA.  If a  
              patient or provider assume that the patient's  
              ERISA-regulated dental plan is regulated by the state (and  
              that assumption is often made because the EOB received by  
              the patient and dentist typically identifies the plan as a  
              commercial company), time is wasted when appealing an  
              adverse payment decision to the plan or to the state  
              regulatory agency.  Appeals based on state law, or following  
              the dispute resolution process required in state law, will  
              have no bearing on plans that are self-funded.  The  
              patient's or provider's path of appeal is different when the  
              plan is ERISA-regulated.  AB 745 requires that both the  
              patient and the provider will be notified from the outset  
              that the plan is ERISA-regulated, and informs them to  




                                                                       
          AB 745 (Coto), Page 6



              contact the appropriate office within the U.S. Department of  
              Labor for assistance and information when a dispute arises  
              with the plan's payment.

          5.  Finally CDA argues proper notification of the laws under  
              which the plan operates will have an impact upon patient  
              care.  As one such example, CDA cites when the dentist  
              prescribes a course of treatment that requires more than a  
              single appointment.  If the patient's dental plan denies all  
              or part of the initial treatment, the patient may be  
              hesitant to proceed with subsequent care if the plan is  
              unwilling to cover it.  The dentist and patient may  
              cooperate to file an appeal on the payment denial with the  
              plan, or to the assumed state regulatory agency, but if the  
              plan is a self-funded plan, this course of appeal will be  
              wasted time, and the appeal on the denial of payment will be  
              delayed, further delaying subsequent treatment prescribed  
              for the patient.


           
          6.  Background  While ERISA exempts the self-funded plan itself  
              from state law, third party administrators are subject to  
              California Department of Insurance oversight.   This bill  
              will revise the insurance code so California regulated TPAs   
              will be required to include in their Explanations of  
              Benefits a notice these plans are subject to regulation  
              under ERISA, along with appropriate contact information.

          7.   Information provided by the California Department of  
              Insurance in this bill's house of origin indicates it is  
              common for self-insured plans to turn over the  
              administration of the health plans to a TPA.  The TPA  
              handles all administrative tasks including claims processing  
              and payments.  Often the employer will contract with an  
              insurance company to act as a TPA for all health care  
              claims.  In these circumstances, the insurer is not subject  
              to state laws and regulations.  CDI indicates that this bill  
              would apply to both TPAs that are required by CDI to obtain  
              a license to administer dental benefits for a self-funded  
              employer and a health insurer who is functioning in an  
              administrative services only (ASO) capacity.  Health  
              insurers with the ASO designation and who hold certificates  
              of authority to transact health insurance are not required  
              to have a separate TPA license to act as a TPA.





                                                                       
          AB 745 (Coto), Page 7



           8.  Support   California Dental Association

           9.  Opposition    The Association of California Life & Health  
              Insurance Companies indicates it understands the need to  
              keep consumers informed but states that most companies  
              provide information to their employees which explain that  
              their dental plan is self-funded and what the member's  
              rights are regarding disputed claims payments.  ACLHIC  
              states that because explanation of benefit forms (EOBs) are  
              usually prepared in a standard format used across all  
              states, forcing the EOBs to provide state-specific  
              information will be very burdensome and costly. 
           
          10. Questions   None

           11. Suggested Amendments  None
           
          12. Prior Legislation   None 

           
          POSITIONS
          
          Support
           
          California Dental Association
           
          Opposition
               
          The Association of California Life & Health Insurance Companies  
          (ACLHIC)


          Principal Consultant:  Kenneth Cooley (916) 651-4102