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--- STAFF ANALYSIS OF ASSEMBLY BILL 2275 (Hayashi) Page 2 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. STAFF ANALYSIS OF ASSEMBLY BILL 2275 (Hayashi) Page 3 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 STAFF ANALYSIS OF ASSEMBLY BILL 2275 (Hayashi) Page 4 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 STAFF ANALYSIS OF ASSEMBLY BILL 2275 (Hayashi) Page 5 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 STAFF ANALYSIS OF ASSEMBLY BILL 2275 (Hayashi) Page 6 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 STAFF ANALYSIS OF ASSEMBLY BILL 2275 (Hayashi) Page 7 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 STAFF ANALYSIS OF ASSEMBLY BILL 2275 (Hayashi) Page 8 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 STAFF ANALYSIS OF ASSEMBLY BILL 2275 (Hayashi) Page 9 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 STAFF ANALYSIS OF ASSEMBLY BILL 2275 (Hayashi) Page 10 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. STAFF ANALYSIS OF ASSEMBLY BILL 2275 (Hayashi) Page 11 POSITIONS Support: California Dental Association (sponsor) Oppose: None received -- END --