BILL NUMBER: SB 900 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 2, 2010
AMENDED IN ASSEMBLY JUNE 23, 2010
AMENDED IN SENATE MAY 20, 2010
AMENDED IN SENATE MAY 5, 2010
AMENDED IN SENATE APRIL 8, 2010
INTRODUCED BY Senators Alquist and Steinberg
(Coauthor: Senator Pavley)
JANUARY 26, 2010
An act to add Section 1346.2 to, and to add Division
114 (commencing with Section 135000) to , the Health and
Safety Code, and to add Section 10112.2 to the Insurance Code,
relating to health care coverage.
LEGISLATIVE COUNSEL'S DIGEST
SB 900, as amended, Alquist. California Health Benefits Exchange.
Existing law, the federal Patient Protection and Affordable Care
Act, requires each state to, by January 1, 2014, establish an
American Health Benefit Exchange that makes available qualified
health plans to qualified individuals and qualified employers, as
specified, and meets certain other requirements. Existing law
provides for the licensure and regulation of health care service
plans by the Department of Managed Health Care and the regulation of
health insurers by the Department of Insurance. Existing law creates
the California Health and Human Services Agency, which consists of
various departments.
This bill would establish the California Health Benefits Exchange
(the Exchange) within the California Health and Human
Services Agency state government and would
require the Exchange to, among other things, implement specified
functions imposed by the federal Patient Protection and Affordable
Care Act in a consumer-friendly manner, enter into contracts with
health care service plans and health insurers seeking to offer
coverage in the Exchange, and provide a choice of products in each
region of the state between 5 levels of coverage, as specified. Under
the bill, carriers participating in the Exchange that sell
products outside the Exchange would be required to offer,
market, and sell all products made available to individuals and small
employers in the Exchange to individuals and small employers
purchasing coverage outside the Exchange. The bill would authorize
the Exchange to take various actions and would require the Exchange
to be governed by a board composed of the Secretary of California
Health and Human Services and 4 other members appointed by the
Governor and the Legislature in a specified manner. The bill would
create the California Health Benefits Exchange Fund in the State
Treasury and would authorize the board to use moneys in the fund,
upon appropriation by the Legislature, for purposes of these
provisions. The bill would also require the California Health and
Human Services Agency to apply for and receive federal funds for
purposes of establishing the Exchange if a majority of the board
of the Exchange has not been appointed, as specified, and
would make those funds available to the agency and the board for
those purposes upon appropriation by the Legislature.
The bill would require the Director of the Department of Managed
Health Care and the Insurance Commissioner to review an Internet
portal developed by the United States Department of Health and Human
Services and to jointly develop and maintain an electronic
clearinghouse of coverage available in the individual and small group
markets if the federal Internet portal does not adequately achieve
certain purposes.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1346.2 is added to the
Health and Safety Code , to read:
1346.2. The director shall, in coordination with the Insurance
Commissioner, review the Internet portal developed by the United
States Secretary of Health and Human Services under subdivision (a)
of Section 1103 of the federal Patient Protection and Affordable Care
Act (Public Law 111-148) and paragraph (5) of subdivision (c) of
Section 1311 of that act, and any enhancements to that portal
expected to be implemented by the secretary on or before January 1,
2015. The review shall examine whether the Internet portal provides
sufficient information regarding all health benefit products offered
by health care service plans and health insurers in the individual
and small employer markets in California to facilitate fair and
affirmative marketing of all individual and small employer plans,
particularly outside the California Health Benefits Exchange created
under Division 114 (commencing with Section 135000). If the director
and the Insurance Commissioner jointly determine that the Internet
portal does not adequately achieve those purposes, they shall jointly
develop and maintain an electronic clearinghouse to achieve those
purposes. In performing this function, the director and the Insurance
Commissioner shall routinely monitor individual and small employer
benefit filings with, and complaints submitted by individuals and
small employers, to their respective departments, and shall use any
other available means to maintain the clearinghouse.
SECTION 1. SEC. 2. Division 114
(commencing with Section 135000) is added to the Health and Safety
Code, to read:
DIVISION 114. CALIFORNIA HEALTH BENEFITS EXCHANGE
135000. There is hereby established in the California
Health and Human Services Agency, state government
the California Health Benefits Exchange.
135001. For purposes of this division, the following definitions
shall apply:
(a) "Board" means the board described in subdivision (j)
(k) of Section 135005.
(b) "Carrier" means either a private health insurer holding a
valid outstanding certificate of authority from the Insurance
Commissioner or a health care service plan, as defined under
subdivision (f) of Section 1345, licensed by the Department of
Managed Health Care, including, but not limited to, a local
initiative plan, a county-organized health system, or a joint venture
of local initiative plans and county-organized health systems.
(c) "Exchange" means the California Health Benefits Exchange
established by Section 135000.
(d) "Fund" means the California Health Benefits Fund established
pursuant to Section 135011.
(e) "Health plan" and "qualified health plan" have the same
meanings as those terms are defined in Section 1301 of the Act.
(f) "SHOP Program" means the Small Business Health Options Program
administered pursuant to subdivision (g) of Section 135005.
(f)
(g) "The Act" means the federal Patient Protection and
Affordable Care Act (Public Law 111-148), as amended by the federal
Health Care and Education Reconciliation Act of 2010 (Public Law
111-152).
135002. (a) The purpose of this division is to implement the
provisions of the Act requiring the establishment of an American
Health Benefit Exchange in this state by creating an exchange in
state government.
(b) The purpose and mission of the Exchange is to make quality and
affordable health care coverage available to eligible Californians
and to meet the requirements of the Act.
135003. It is the intent of the Legislature that the Exchange do
all of the following:
(a) Provide a consumer friendly process that facilitates the
seamless enrollment of individuals in health care coverage.
(b) Provide an easily understandable marketplace for purchasing
health care coverage where consumers can identify their appropriate
and affordable health care coverage choice and, if eligible, claim
their federal tax and cost-sharing subsidy.
(c) Organize the health care coverage and cost choices within the
Exchange to facilitate competition based on price and quality.
135004. The Exchange shall meet the requirements imposed by the
Act, and perform all of the following functions in a
consumer-friendly manner:
(a) Provide for the operation of a toll-free telephone hotline to
respond to requests for assistance.
(b) Maintain an Internet Web site through which enrollees and
prospective enrollees of qualified health plans may obtain
standardized comparative information on those plans.
(c) Assign a rating to each qualified health plan offered through
the Exchange in accordance with the criteria developed under
paragraph (3) of subdivision (c) of Section 1311 of the Act.
(d) Utilize a standardized format for presenting health benefits
plan options in the Exchange, including the use of the uniform
outline of coverage established under Section 2715 of the federal
Public Health Service Act.
(e) Consistent with the system established under Section 1413 of
the Act, inform individuals of eligibility requirements for the
Medi-Cal program, the Healthy Families Program, or any applicable
state or local public health care coverage program and, if, through
screening of an application by the Exchange, the Exchange determines
that an individual is eligible for any of those programs, enroll the
individual in that program.
(f) Establish and make available by electronic means a calculator
to determine the actual cost of coverage after the application of any
premium tax credit under Section 36B of the Internal Revenue Code of
1986 and any cost-sharing reduction under Section 1402 of the Act.
(g) Grant a certification, subject to Section 1411 of the Act and
any implementing regulations, attesting that, for purposes of the
individual responsibility penalty under Section 5000A of the Internal
Revenue Code of 1986, an individual is exempt from the individual
responsibility requirement or from the penalty imposed by that
section because of either of the following:
(1) There is no affordable qualified health plan available through
the Exchange, or the individual's employer, covering the individual.
(2) The individual meets the requirements for any other exemption
from the individual responsibility requirement or penalty.
135005. In addition to meeting the requirements of the Act, the
Exchange shall do all of the following:
(a) Develop and maintain an electronic clearinghouse of all
products offered to individuals and small employers by carriers both
inside and outside of the Exchange to assist individuals and small
employers in understanding and comparing the available products and
in making their coverage purchasing decision. In developing the
electronic clearinghouse, the board may require carriers
participating in the Exchange to make available and regularly update
an electronic directory of contracting health care providers so
individuals seeking coverage through the Exchange can search by
health care provider name to determine which health plans in the
Exchange include that health care provider in their network, and
whether that health care provider is accepting new patients for that
particular health plan.
(a) Determine the criteria and process for eligibility,
enrollment, and disenrollment of enrollees and potential enrollees in
the Exchange.
(b) Develop processes to coordinate with the county entities that
administer eligibility for the Medi-Cal program and the entity that
determines eligibility for the Healthy Families Program, including,
but not limited to, processes for case transfer, referral, and
enrollment in the Exchange of individuals applying for assistance to
those entities, if allowed or required by federal law.
(b)
(c) Negotiate and enter into contracts, including
selective carrier contracts, with carriers seeking to offer coverage
in the Exchange.
(c)
(d) Determine the participation requirements,
standards, and selection criteria for carriers and products offered
through the Exchange, which may include, but are not limited to,
standards that encourage the use of delivery systems that deliver
cost-effective, high-quality care.
(d)
(e) Provide a choice of products in each region of the
state, including a choice in each region of the state between the
five levels of coverage contained in subdivisions (d) and (e) of
Section 1302 of the Act.
(e)
(f) Require, as a condition of participation in the
Exchange, carriers that sell any products outside the Exchange
to do both of the following:
(1) Fairly and affirmatively offer, market, and sell all products
made available to individuals in the Exchange to individuals
purchasing coverage outside the Exchange.
(2) Fairly and affirmatively offer, market, and sell all products
made available to small employers in the Exchange to small employers
purchasing coverage outside the Exchange.
(f)
(g) Administer a separate Small Business Health Options
Program (SHOP) that is designed to assist small employers in
facilitating the enrollment of their employees in products
offered in the small group market through the Exchange.
qualified health plans offered through the Exchange in the small
group market in a manner consistent with paragraph (2) of
subdivision (a) of Section 1312 of the Act.
(g)
(h) Undertake activities necessary to market and
publicize the availability of health care coverage through
the Exchange. availability of health care coverage and
federal subsidies through the Exchange. The board shall also
undertake outreach and enrollment activities that seek to assist
enrollees and potential enrollees with enrolling and reenrolling in
the Exchange in the least burdensome manner, including populations
that may experience barriers to enrollment, such as the
disabled and those with limited English language proficiency.
(h)
(i) Select and set performance standards and
compensation for navigators selected pursuant to subdivision (i) of
Section 1311 of the Act.
(i)
(j) Employ necessary staff, including actuarial staff.
(j)
(k) (1) Be governed by a board consisting of five
members. Of the five members, two shall be appointed by the Governor,
one shall be appointed by the Senate Committee on Rules, and one
shall be appointed by the Speaker of the Assembly. In making
appointments to the board, the appointing authorities shall take into
consideration the cultural, ethnic, and geographical diversity of
the state so that the board's composition reflects the communities of
California. The Secretary of California Health and Human
Services or his or her designee shall serve as an ex officio voting
member.
(2) Members of the board , other than an ex
officio member, shall be appointed for a term of four years.
Vacancies shall be filled by appointment for the unexpired term.
(3) Each person appointed to the board shall have demonstrated and
acknowledged expertise in at least two of the following areas:
(A) The health care coverage market.
(B) The small group health care coverage market.
(A) Individual health care coverage.
(B) Small group health care coverage.
(C) Health benefits plan administration.
(D) Health care finance.
(E) Administering a public or private health care delivery system.
(F) Health plan purchasing.
(4) Each member of the board shall have the responsibility and
duty to meet the requirements of this division and the Act, to serve
the public interest of the individuals and small businesses seeking
health care coverage through the Exchange, and to ensure the
operational well-being and fiscal solvency of the Exchange.
(5) The chairperson of the board shall hire an executive director
to organize, administer, and manage the operations of the
Exchange, and to serve as secretary and as an ex officio nonvoting
member of the board. Exchange. The executive director
shall serve at the pleasure of the board.
(6) A member of the board shall not be employed by, a consultant
for, a member of the board of directors of, affiliated with ,
an agent of, or otherwise a representative of, any carrier or
other insurer, agent, or broker, or a health care provider, health
care facility, or health clinic while serving on the board and
during the first year following his or her service on the
board . A board member shall not receive compensation for his
or her service on the board but may receive per diem and
reimbursement for travel and other necessary expenses, as provided in
Section 103 of the Business and Professions Code, while engaged in
the performance of official duties of the board.
(7) No member of the board shall make, participate in making, or
in any way attempt to use his or her official position to influence
the making of any decision that he or she knows or has reason to know
will have a reasonably foreseeable material financial effect,
distinguishable from its effect on the public generally, on him or
her or a member of his or her immediate family, or on either of the
following:
(A) Any source of income, other than gifts and other than loans by
a commercial lending institution in the regular course of business
on terms available to the public without regard to official status
aggregating two hundred fifty dollars ($250) or more in value
provided to, received by, or promised to the member within 12 months
prior to the time when the decision is made.
(B) Any business entity in which the member is a director,
officer, partner, trustee, employee, or holds any position of
management.
(7)
(8) The board shall hold public meetings and be subject
to the requirements of the Bagley-Keene Open Meeting Act (Article 9
(commencing with Section 11120) of Chapter 1 of Part 1 of Division 3
of Title 2 of the Government Code), except that the board may hold
closed sessions when considering matters related to litigation,
personnel, contracting, and the development of rates.
(k) Receive
(l) Apply for and receive federal
funds for purposes of establishing and administering the Exchange,
including funds made available pursuant to Section 1311 of the Act.
(m) Report, or contract with an independent entity to report, to
the Legislature by December 1, 2018, on whether to adopt the option
in paragraph (3) of subdivision (c) of Section 1312 of the Act to
merge the individual and small group markets. In its report, the
board shall provide information, based on at least two years of data
from the Exchange, on the potential impact on rates paid by
individuals and by small employers in a merged individual and small
group market, as compared to rates paid by individuals and small
employers if separate individual and small group markets are
maintained. A report made pursuant to this subdivision shall be
submitted pursuant to Section 9795 of the Government Code.
(n) With respect to the SHOP Program, collect premiums and
administer all other necessary and related tasks, including, but not
limited to, enrollment and plan payment, in order to make the
offering of employee plan choice as simple as possible for qualified
small employers.
(o) Ensure that the Exchange provides oral interpretation services
in any language for individuals seeking coverage through the
Exchange and makes available a toll-free telephone number for the
hearing and speech impaired. The board shall ensure that written
information made available by the Exchange is presented in a plainly
worded, easily understandable format and made available in prevalent
languages.
135006. The Exchange may do any of the following:
(a) Issue rules and regulations, as necessary. Until January 1,
2014 2016 , any necessary rules and
regulations may be adopted as emergency regulations in accordance
with the Administrative Procedure Act (Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code). The adoption of these regulations shall be deemed an emergency
and necessary for the immediate preservation of the public peace,
health and safety, or general welfare.
(b) Apply for and receive funds from private foundations.
(c) Report, or contract with an independent entity to report, to
the Legislature on whether to adopt the option in subdivision (b) of
Section 1311 of the Act to provide a single exchange for providing
services to both qualified individuals and qualified small employers.
The report shall provide data on the impact of having a single
exchange with a merged individual and small group market on rates
paid by individuals and by small employers, as compared to the impact
on those rates of having separate exchanges for the individual and
small group markets. A report submitted under this subdivision shall
be submitted in compliance with Section 9795 of the Government Code.
This subdivision shall become inoperative on January 1, 2016.
(c) Collaborate with the State Department of Health Care Services,
to the extent possible, to allow an individual the option to remain
enrolled with his or her carrier and provider network in the event
the individual experiences a loss of eligibility of premium tax
credits and becomes eligible for the Medi-Cal program or the Healthy
Families Program, or loses eligibility for the Medi-Cal program or
the Healthy Families Program and becomes eligible for premium tax
credits through the Exchange.
(d) Share information with relevant state departments, consistent
with the confidentiality provisions in Section 1411 of the Act,
necessary for the administration of the Exchange.
(e) Require carriers participating in the Exchange to make
available to the Exchange and regularly update an electronic
directory of contracting health care providers so that individuals
seeking coverage through the Exchange can search by health care
provider name to determine which health plans in the Exchange include
that health care provider in their network. The board may also
require a carrier to provide regularly updated information to the
Exchange as to whether a health care provider is accepting new
patients for a particular health plan. The Exchange may provide an
integrated and uniform consumer directory of health care providers
indicating which carriers the providers contract with and whether the
providers are currently accepting new patients. The Exchange may
also establish methods by which health care providers may transmit
relevant information directly to the Exchange, rather than through a
carrier.
(f) Require carriers participating in the Exchange to immediately
notify the Exchange, under the terms and conditions established by
the board, when an individual is or will be enrolled in or
disenrolled from any qualified health plan offered by the carrier.
(d)
(g) Enter into other contracts as are necessary or
proper to carry out the duties of the Exchange , including,
but not limited to, contracts for enrollment processing .
(e) Determine the health benefits coverage for small employers
that the Exchange will contract to purchase from participating
carriers.
(h) Determine the cost sharing in health benefits coverage that
the Exchange will contract to make available from participating
carriers.
(i) With respect to individual coverage made available in the
Exchange, collect premiums and assist in the administration of
subsidies.
(f)
(j) Appoint committees, as necessary, to provide
technical assistance in the operation of the Exchange.
(g)
(k) Undertake activities necessary to administer the
Exchange, including marketing and publicizing the Exchange and
establishing rules, conditions, and procedures for ensuring carrier,
employer, and enrollee compliance with Exchange requirements,
consistent with federal law and regulations.
(h)
(l) Consistent with federal procedures established
under subdivision (e) of Section 1312 of the Act, establish
procedures to allow agents or brokers to do both of the following:
(1) Enroll individuals in any qualified health plan in the
individual or small group market as soon as the plan is offered
through the Exchange.
(2) Assist individuals in applying for premium tax credits and
cost-sharing reductions for health plans sold through the Exchange.
(i)
(m) Consistent with subdivision (d) of Section 1311 of
the Act, include within the premiums charged to enrollees or
employers purchasing coverage through the Exchange an amount
sufficient to pay the actual, reasonable, and necessary
administrative costs of the Exchange. assess a charge,
at the lowest possible rate, on the qualified health plans offered
by carriers to support the development, operations, and
prudent cash management of the Exchange. This charge shall not affect
the requirement under Section 1301 of the Act that carriers charge
the same premium rate for each qualified health plan whether offered
inside or outside the Exchange.
135006.1. The Exchange shall only collect information from
individuals or designees of individuals necessary to administer the
Exchange and consistent with Section 1411 of the Act.
135007. (a) Notwithstanding any other provision of law, the
Exchange shall not be subject to licensure or regulation by the
Department of Insurance or the Department of Managed Health Care.
(b) Carriers that contract with the Exchange shall be in good
standing with their respective regulatory agencies.
135008. (a) If an individual or an employer is dissatisfied with
any action or failure to act that has occurred in connection with
eligibility for, or enrollment in, the Exchange, the individual or
employer shall have the right to appeal to the board and shall be
accorded an opportunity for a fair hearing. Hearings shall be
conducted pursuant to the provisions of Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code to the extent those provisions are consistent with appeals
requirements imposed under the Act.
(b) Notwithstanding subdivision (a), the board shall not be
required to provide an appeal concerning a coverage
determination if the subject of the appeal is within the
jurisdiction of the Department of Managed Health Care pursuant to the
Knox-Keene Health Care Service Plan Act of 1975 (Chapter 2.2
(commencing with Section 1340) of Division 2) and its implementing
regulations, or within the jurisdiction of the Department of
Insurance pursuant to the Insurance Code and its implementing
regulations.
135009. Nothing in this division shall be construed to compel an
individual to enroll in a qualified health plan or to participate in
the Exchange.
135010. The California Health and Human Services Agency shall
apply for and receive federal funds for purposes of establishing the
Exchange, including funds made available pursuant to Section 1311 of
the Act.
135010. If a majority of the board has not been appointed when
the United States Secretary of Health and Human Services makes the
initial planning and establishment grants available under Section
1311 of the Act, the California Health and Human Services Agency
shall submit the initial application for planning and establishment
grants to the United States Secretary of Health and Human Services.
135010.5. There shall not be any liability in a private capacity
on the part of the board or any member of the board, or any officer
or employee of the board, for or on account of any act performed or
obligation entered into in an official capacity, when done in good
faith, without intent to defraud, and in connection with the
administration, management, or conduct of this division or affairs
related to this division.
135011. (a) The California Health Benefits Exchange Fund is
hereby created in the State Treasury as a special fund consisting of
revenue necessary for the purposes of this division. Any moneys in
the fund that are unexpended or unencumbered at the end of a fiscal
year may be carried forward to the next succeeding fiscal year and
may be spent without regard to fiscal year.
(b) The board shall establish a prudent reserve in the fund.
(c) Notwithstanding any other provision of law, moneys deposited
in the fund shall not be loaned to, or borrowed by, any other special
fund or the General Fund, or a county general fund or any other
county fund.
(d) Except as provided in subdivision (e), moneys in the fund
shall, upon appropriation by the Legislature, be used by the board
for the purposes of this division.
(e) Moneys in the fund received pursuant to Section 135010 shall,
upon appropriation by the Legislature, be used by the California
Health and Human Services Agency or the board for purposes of
establishing the Exchange.
(f) Notwithstanding Section 16305.7 of the Government Code,
all interest earned on the moneys that have been deposited into the
fund shall be retained in the fund.
SEC. 3. Section 10112.2 is added to the
Insurance Code , to read:
10112.2. The commissioner shall, in coordination with the
Director of the Department of Managed Health Care, review the
Internet portal developed by the United States Secretary of Health
and Human Services under subdivision (a) of Section 1103 of the
federal Patient Protection and Affordable Care Act (Public Law
111-148) and paragraph (5) of subdivision (c) of Section 1311 of that
act, and any enhancements to that portal expected to be implemented
by the secretary on or before January 1, 2015. The review shall
examine whether the Internet portal provides sufficient information
regarding all health benefit products offered by health care service
plans and health insurers in the individual and small employer
markets in California to facilitate fair and affirmative marketing of
all individual and small employer plans, particularly outside the
Health Benefits Exchange created under Division 114 (commencing with
Section 135000) of the Health and Safety Code. If the commissioner
and the Director of the Department of Managed Health Care jointly
determine that the Internet portal does not adequately achieve those
purposes, they shall jointly develop and maintain an electronic
clearinghouse to achieve those purposes. In performing this function,
the commissioner and the Director of the Department of Managed
Health Care shall routinely monitor individual and small employer
benefit filings with, and complaints submitted by individuals and
small employers to, their respective departments, and shall use any
other available means to maintain the clearinghouse.