BILL ANALYSIS                                                                                                                                                                                                    






                                 SENATE HEALTH
                               COMMITTEE ANALYSIS
                        Senator Elaine K. Alquist, Chair


          BILL NO:       AB 2275                                      
          A
          AUTHOR:        Hayashi                                      
          B
          AMENDED:       June 10, 2010                               
          HEARING DATE:  June 30, 2010                                
          2
          CONSULTANT:                                                 
          2
          Chan-Sawin/cjt                                              
          7
                                                                       
              5                                             
                                        
                                     SUBJECT
                                         
                     Dental coverage: non-covered benefits

                                     SUMMARY  

          Prohibits a health care service plan (health plan) or  
          health insurer, beginning January 1, 2011, from requiring a  
          dentist to accept an amount set by the plan or insurer as  
          payment for dental care services provided to an enrollee or  
          insured, unless the dental care services are covered  
          services under the plan contract or policy, as specified.

                             CHANGES TO EXISTING LAW  

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

          Requires contracts between plans or insurers and providers  
          to be fair and reasonable.

          Requires plans and insurers to reimburse a claim for  
          covered services within a specified period of time of  
          receiving the claim.

                                                         Continued---



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          This bill:
          Prohibits a full service or specified health plan or  
          insurer, with respect to plan contracts and policies that  
          cover dental services, from requiring a dentist to accept  
          an amount set by the plan or insurer as payment for dental  
          care services provided to an enrollee or insured, unless  
          the dental care services are covered services under the  
          plan contract or policy, as specified.

          Defines "covered services" to mean dental care services for  
          which a reimbursement is available under a health plan  
          contract or health insurance policy, or for which a  
          reimbursement would be available, but for the application  
          of contractual limitations, such as deductibles,  
          copayments, coinsurance, waiting periods, annual or  
          lifetime maximums, frequency limitations, alternative  
          benefit payments, or any other limitation.
          Specifies that this bill only applies to provider contracts  
          issued, revised, or renewed on or after January 1, 2011.

          Exempts discount health plan provider agreements.
          
                                  FISCAL IMPACT 

          This bill has not yet been analyzed by a fiscal committee.

                            BACKGROUND AND DISCUSSION  

          This bill would prohibit dental benefit plans, those  
          regulated by the Department of Managed Health Care or the  
          Department of Insurance, from setting fees charged by  
          dental practices for procedures that the dental plan does  
          not cover in its scope of benefits.  

          The author believes that the policy of dental benefit plans  
          capping fees for procedures they do not cover is an  
          intrusion into the marketplace, and results in the plans  
          dictating fees for services they have no financial stake  
          in, and for which the plan bears no risk.  

          Dentists express concerns that plans' reimbursement rates  
          for non-covered benefits, such as rates for dental  
          implants, often don't cover the cost of materials and  
          fabrication of the crown to be placed on the implant.  





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          The author and sponsor assert that dentists are not given  
          the opportunity to refuse provisions requiring dentists to  
          adhere to discounted fees for procedures that a dental plan  
          doesn't cover, but must accept them along with the entire  
          contract if they want to participate in the plan's provider  
          network.  

          The author and sponsor argue that the capping of fees for  
          non-covered services is used as a marketing tool by plans  
          and insurers with prospective subscribing groups, and has  
          given an advantage to the larger dental benefit companies  
          which have a larger market share and more negotiating  
          power.  The sponsor believes that placing this in statute  
          creates an equal playing field among all dental plans.  

          Dental coverage in California
          Dental insurance plays a key role in oral health.  However,  
          while dental insurance typically covers preventive services  
          and significantly reduces the costs for services such as  
          fillings, crowns, and dentures, dental benefits often are  
          not comprehensive and come with significant cost-sharing  
          requirements and annual caps, which may lead to high  
          out-of-pocket expenditures.

          Although structured similar to health insurance, dental  
          insurance is often more limited in scope and availability.   
          In California, 39 percent of the population has no dental  
          coverage, compared to 13 percent without health insurance,  
          according to a September 2009 California Healthcare  
          Foundation (CHCF) report.  Dental insurance enables people  
          from different socioeconomic backgrounds to obtain dental  
          services.  Those without dental insurance coverage bear the  
          entire cost of their dental services, which often compete  
          with health care, food, rent, and other basic necessities,  
          particularly for the poor and disadvantaged.   
          Unsurprisingly, people without dental coverage typically  
          seek dental care less often and may suffer poor dental  
          health as a result.  

          In 2007, among Californians with dental insurance, 78  
          percent have employer-sponsored coverage.  Five percent of  
          Californians privately purchased dental insurance in 2007.   
          These are primarily those whose employers do not offer  
          dental benefits and who do not qualify for a public  
          program.  The remaining 17 percent were insured through  




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          public programs, including low-income workers who are not  
          offered health and dental benefits, the self-employed,  
          unemployed, and those not in the labor market.

          Only 34 percent of California employers offer dental  
          benefits, and dental benefits are rarely offered  
          independent of health benefits.  

          Types of dental insurance
          Dental insurance plans, much like health insurance plans,  
          can be divided into health maintenance organizations  
          (HMOs), preferred provider organizations (PPOs),  
          traditional indemnity plans, discount or referral plans,  
          and direct reimbursement plans.

                  Dental HMOs  :  Dental HMOs provide dental benefits  
               on a capitation basis using a contracted provider  
               network.  Some dental HMOs may allow consumers to use  
               non-network providers on a fee-for-service basis, but  
               in general, dental HMOs rely on primary care dentists  
               to perform gatekeeper functions, including referrals  
               to specialists.  Dental HMO participants are typically  
               limited in choice of dental providers.  While dental  
               HMOs have lower levels of cost-sharing compared with  
               other types of dental plans, they pay on a capitated  
               basis, which may lead to lower provider participation.  
                Approximately 10 percent, or roughly 3.5 million,  
               Californians are in dental HMOs.  Only 4 percent of  
               Denti-Cal recipients are in a dental HMO.

                  Dental PPOs  :  Since 2000, dental PPOs have  
               increased in popularity and market share.  California  
               has the largest number of dental PPO participants at  
               an estimated 12.4 million, or 34 percent of the  
               state's population.  Employers may choose dental PPOs  
               to reduce costs while offering benefit and provider  
               access levels similar to indemnity plans.  The more  
               popular PPO dental plans utilize large networks of  
               preferred providers who agree to discounted  
               reimbursement amounts.  

                  Dental Indemnity Plans :  California dental  
               indemnity plans insure 7.3 percent of the state's  
               population.  These plans pay providers on a  
               fee-for-service basis without any discounts or  




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               contractual arrangements.  In general, their presence  
               is slowly declining.

                  Dental Discount Plans  :  Also known as referral  
               plans, a dental discount plan is a non-insured  
               arrangement in which a panel of providers agrees to  
               discounted fees directly paid by participants.  The  
               discount plans themselves do not contribute to the  
               cost of service.  These plans serve 0.3 percent of the  
               California population, and are more prevalent in the  
               individual market than other types of plans. 

                  Direct Reimbursement Plans  :  These plans are  
               self-funded programs that reimburse participants for a  
               percentage of their dental care expenses, have no  
               restrictions on the choice of provider, and function  
               similar to employment-based health savings accounts  
               without a health plan feature.  These plans occupy one  
               percent of the national market share.

          Health maintenance organizations (HMO) and preferred  
          provider organizations (PPO) establish, through contracts,  
          networks of providers to provide care to the plans'  
          enrollees.  Contracted providers agree to a fee schedule  
          for providing treatment to the plan's enrollees.  Providers  
          understand that, by participating in HMO and PPO networks,  
          they will receive reimbursements for care that are usually  
          below their standard fees for services.  However,  
          increasingly, dental plans have adopted a policy of setting  
          fees for benefits they do not cover, requiring dentists to  
          adhere to those fee caps for non-covered services.
          
          Dental benefits and cost-sharing
          Covered dental services often include preventive/diagnostic  
          services (i.e. cleaning and routine dental exams), basic  
          dental care and procedures (i.e. fillings and extractions),  
          and major dental care (i.e. root canals and crowns).   
          Orthodontia, cosmetic, and implants are generally excluded  
          from benefits, and often fall under the category of  
          "non-covered dental services."  

          Cost-sharing for dental benefits is structured similarly to  
          general health benefits, with tiered deductibles and  
          cost-sharing depending on the type of service.  However,  
          the scope of covered benefits and out-of-pocket expenses  




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          differs considerably from product to product.  Dental HMOs  
          do not include deductibles and have low copayments.  Dental  
          PPOs and indemnity plans cover preventive care without  
          requiring deductibles, but apply tiered deductibles and  
          cost-sharing for other services.  Often basic dental care  
          and procedures have lower deductibles and cost-sharing  
          amounts, while major services, such as crowns and root  
          canals have higher deductibles and out-of-pocket costs.   
          Among employment-based plans, the most common cost-sharing  
          arrangement is a $50 plus 20 percent coinsurance for basic  
          dental services.  For major services, the most common  
          cost-sharing arrangement is $50 plus 50 percent  
          coinsurance.  Orthodontic services are covered at even  
          higher cost-sharing levels.

          Many dental plans have an annual cap for covered services,  
          at which point the plan stops contributing to the cost of  
          services until the next enrollment year.  In terms of their  
          annual cap, 65 percent of indemnity plans and 57 percent of  
          dental PPOs have caps between $1,000 and $1,500, compared  
          to 21 percent of indemnity plans and 30 percent of dental  
          PPOs with caps between $1,500 and $1,999.  In comparison,  
          Denti-Cal's annual cap is $1,800.  Dental HMOs have no  
          caps.

          In September of 2009, CHCF released two reports detailing  
          the scope, structure and availability of dental insurance  
          in California, as well as how dental insurance impacts  
          access to dental care in the state.  These reports point  
          out that, while dental insurance covers the cost of  
          preventive services and significantly reduces the costs for  
          basic services, dental insurance benefits are often not  
          comprehensive and have significant cost-sharing  
          requirements and annual caps.  One report found that dental  
          out-of-pocket expenses were reported by 77 percent of  
          adults in general, with nearly 1 in 10 privately insured  
          adults having out-of-pocket dental expenses over $2,000 in  
          one year.  Dental out-of-pocket expenditures were about as  
          high as medical out-of-pocket expenditures for adults who  
          had visited a dentist in the previous year.

          The CHCF reports found that affordability of dental care is  
          the number-one reported barrier to access to dental care.   
          While dental insurance enables people to obtain dental  
          care, it does not remove all financial barriers to needed  




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          services.  High out-of-pocket costs restrict some people  
          from obtaining preventive and other necessary services,  
          particularly when dental bills compete with medical or  
          other basic living expenses.  Affordability concerns are  
          most common among the uninsured, but also plague the  
          privately and publicly insured.  Those with privately  
          purchased policies often face increasing premium costs and  
          potentially lower-costs discount plans that do not cover  
          the full cost of dental care.  

          Arguments in support
          According to the sponsor, the California Dental  
          Association, a number of dental benefits health plans and  
          insurers have, in recent years, added language to provider  
          agreements requiring them to set discounted fees for dental  
          services that the plans do not cover and do not pay for.   
          While these contractual provisions may give a dental plan a  
          competitive edge against their competitors, CDA asserts  
          that requiring dental practitioners to bear the burden of  
          these discounts is fundamentally unfair.  Employers and  
          other group subscribers have the opportunity to negotiate  
          with the plans to determine what they will and will not  
          cover.  Dental providers do not have the ability to  
          negotiate specific provisions of their service agreements  
          with plans.  CDA believes it is unreasonable to allow plans  
          to arbitrarily set fees for services that they themselves  
          are not even covering.  

          Related bills
          AB 684 (Ma) of 2009, in an earlier version, would have  
          increased the interest rate health plans and insurers  
          covering dental services must pay for uncontested claims,  
          and claims that the health plan and insurer determines to  
          be payable that are not reimbursed within 60 working days,  
          as specified.  Would have also required the interest that  
          accrues to be paid to the health plans and insurers'  
          respective regulators for enforcement of specified laws,  
          upon appropriation.  Required health plans and insurers  
          offering dental coverage to follow a specified process for  
          requesting additional information related to claims.  These  
          provisions were amended out of the bill. 
          
          AB 2035 (Coto) of 2010 requires the third-party  
          administrator of a self-funded dental benefit plan to  
          include a disclosure in the explanation of benefits  




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          document and benefit claim forms which provides the contact  
          information for the federal Department of Labor, which  
          regulates self-funded plans, in the event the consumer has  
          a payment dispute with the plan.  Never heard in the Senate  
          Health Committee at the request of the author.

          AB 745 (Coto) of 2009 was substantively similar to AB 2035  
          (Coto) of 2010.  Vetoed by the Governor.
          
          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 Fund, not less than the amount owed the provider plus  
          interest. Vetoed by the Governor.
          
          AB 895 (Aghazarian), Chapter 164, Statutes of 2007,  
          requires a health plan contract covering dental services,  
          or a disability insurer that issues a dental insurance  
          policy, to declare its coordination of benefits policy, as  
          defined, prominently in its evidence of coverage documents  
          or in its contracts or policies with both enrollees or  
          insureds and subscribers or policyholders. Also requires an  
          enrollee's or insured's primary dental benefit plan, as  
          defined, that is coordinating dental benefits with one or  
          more other plans or insurers to pay the maximum amount  
          required by its contract or policy with the enrollee or  
          insured or the subscriber or policyholder. Requires a  
          secondary dental benefit plan, as defined, to pay the  
          lesser of either the amount that it would have paid in the  
          absence of any other dental benefit coverage or the  
          enrollee's or insured's total out-of-pocket cost payable  
          under the primary dental benefit plan for benefits covered  
          under the secondary dental benefit plan.

          AB 1455 (Scott), Chapter 827, Statutes of 2000, bars health  
          plans from engaging in unfair payment patterns in the  




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          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.  

                                  PRIOR ACTIONS

           No longer applicable.

                                     COMMENTS
           
          1.  Author's amendments to be taken in committee.  Staff  
          understands that the author intends to offer a number of  
          amendments in committee, including one that would change  
          the scope of the bill.  The author's intended amendments  
          are described below:

               a.     Clarifies that the bill prohibits a contract  
                 between a dental plan and a dentist from requiring  
                 the dentist to accept an amount set by the plan as  
                 payment for non-covered services, instead of  
                 prohibiting the dental plan directly.  

               b.     Changes the definition of "covered services" to  
                 say "dental care services for which the health plan  
                 or insurer is, pursuant to provider contracts,  
                 obligated to pay, or for which the plan would be  
                 obligated to pay, but for the application of  
                 contractual limitations such as deductibles,  
                 copayments, coinsurance, waiting periods, annual or  
                 lifetime maximums, frequency limitations, or  
                 alternative benefit payments."  Also extends this  
                 definition to "covered dental services."

               c.     Deletes the exemption for discount health plan  
                 provider agreements.
          2.  Bill would remove the ability of plans and insurers  
          from negotiating, on behalf of their enrollees and  
          subscribers, discounted rates on non-covered services.   
          Many health plans and insurers offer, as a benefit to their  
          enrollees and insureds, a discounted rate on non-covered  
          services.  In these situations, the health plan or insurer  
          has negotiated, on behalf of the enrollee or insured, the  
          rates on non-covered services.  This bill does not allow  




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          health plans and insurers to offer such a benefit, even if  
          the plan and provider are both willing to negotiate a  
          discounted rate. The author may wish to allow health plans  
          and insurers to offer an alternative rate schedule for  
          non-covered services that is mutually agreed to by the plan  
          and provider.

          3.  The bill does not provide a limit as to how much dental  
          providers may charge.  This bill does not speak to how much  
          a dental provider may charge, or offer any limits on  
          charges, for non-covered services.  Staff suggests  
          amendments to require providers to charge no more than the  
          usual and customary rates for such services:

               d.     On page 3, between lines 3 and 4, insert:
               
                 (d) Payments for dental care services that are not  
                 covered services under the enrollee's contract [or  
                 insured's policy] shall be no more than the  
                 provider's usual and customary rate for such  
                 services.
          
               e.     On page 4, between lines 24 and 25, insert:
               
                 (d) Payments for dental care services that are not  
                 covered services under the enrollee's contract [or  
                 insured's policy] shall be no more than the  
                 provider's usual and customary rate for such  
                 services.
          
          4.  Additional disclosure to enrollees.  As noted in the  
          CHCF reports, economic downturns threaten dental insurance  
          coverage rates as employers seek cost-saving measures.  The  
          trend toward increased market share of dental PPO plans in  
          the private market can potentially shift a greater share of  
          dental expenditures to the insured population.  Given that  
          one in ten Californians currently pay over $2,000 in  
          out-of-pocket expenses, this bill could have the unintended  
          consequence of exposing patients to additional risk that  
          the patient is not fully aware of.  Staff suggests an  
          amendment to require dental plans to provide additional  
          disclosure to enrollees to ensure enrollees understand the  
          potential risk for additional out-of-pocket costs they may  
          be subject to based on their dental plan.





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                                    POSITIONS  
                                        
          Support:  California Dental Association (sponsor)

          Oppose:  None received

                                   -- END --