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 AB 745 (Coto), Page 2 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 AB 745 (Coto), Page 3 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 AB 745 (Coto), Page 5 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