BILL ANALYSIS Ó
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 922
A
AUTHOR: Monning
B
AMENDED: June 20, 2011
HEARING DATE: June 29, 2011
9
CONSULTANT:
2
Chan-Sawin
2
SUBJECT
Office of Patient Advocate
SUMMARY
Transfers the Office of the Patient Advocate (OPA) from the
Department of Managed Health Care (DMHC) to operate as an
independent entity within state government. Requires
existing OPA duties to apply to health insurers regulated
by the California Department of Insurance (CDI) and their
insureds (in addition to DMHC-regulated health plans) and
assigns new duties to the OPA consistent with requirements
of the Patient Protection and Affordable Care Act (PPACA).
CHANGES TO EXISTING LAW
Existing federal law:
Requires, under PPACA (Public Law 111-148), as amended by
the Health Care Education and Reconciliation Act of 2010
(Public Law 111-152), each state, by January 1, 2014, to
establish an American Health Benefit Exchange that makes
qualified health insurance products available to qualified
individuals and qualified employers. If a state does not
establish an Exchange, the federal government administers
Continued---
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the Exchange.
Requires the federal Secretary of Health and Human Services
Agency to award grants to states to enable states (or the
exchanges operating in such states) to establish, expand,
or provide support for offices of health insurance consumer
assistance or health insurance ombudsman programs.
Establishes criteria for states to meet in order to receive
a consumer assistance grant under the PPACA, and requires
the ombudsman to perform certain activities, including
assisting with the filing of complaints and appeals,
educating consumers on their rights and responsibilities,
assisting consumers with enrollment, and resolving problems
in obtaining premium tax credits made available by PPACA.
As a condition of receiving a federal ombudsman grant, an
office of health insurance consumer assistance or ombudsman
program is required to collect and report data to the
Secretary of HHS on the types of problems and inquiries
encountered by consumers.
Existing state law:
Provides for the regulation of health plans by DMHC under
the Knox-Keene Health Care Service Plan Act of 1975, and
for the regulation of health insurers by the CDI, under
provisions of the Insurance Code (collectively referred to
as regulators).
Requires DMHC to establish and maintain a toll-free
telephone number for the purpose of receiving complaints
regarding health plans regulated by DMHC.
Establishes the Office of Patient Advocate (OPA) within
DMHC to represent the interests of enrollees served by
health plans regulated by DMHC and establishes, as the goal
of OPA, to help enrollees secure health care services to
which they are entitled under the laws administered by
DMHC. Requires OPA to compile an annual publication, to be
made available on DMHC's website, of a quality-of-care
report card, including, but not limited to, health plans.
Requires the Insurance Commissioner to establish a program
to investigate complaints, respond to inquiries, and to
bring enforcement actions regarding health insurers.
Requires the program to include, but not be limited to, a
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toll-free telephone number dedicated to the handling of
complaints and inquiries, public service announcements to
inform consumers of the toll-free telephone number,
information as to how to register a complaint or make an
inquiry to the CDI, and a simple, standardized complaint
form designed to assure that complaints will be properly
registered and tracked.
Establishes the Medi-Cal program, which is administered by
the State Department of Health Care Services (DHCS), under
which qualified low-income individuals receive health care
services.
Authorizes DHCS, for purposes of the Medi-Cal Program, on a
regional pilot project basis, to the extent authorized by
law, to enter into contracts with one or more nonprofit
organizations to perform the functions of the DHCS' Office
of the Ombudsman.
Establishes and specifies the duties and authority the
California Health Benefit Exchange (Exchange) within state
government in a manner that is consistent with PPACA.
Establishes the Managed Care Fund and the Insurance Fund,
for the purposes of funding the regulatory activities of
DMHC and CDI, respectively.
This bill:
Transfers the OPA from DMHC, and establishes it as an
independent entity within state government.
Requires existing OPA duties to also apply to health
insurers regulated by CDI and their insureds (in addition
to DMHC-regulated health plans).
Requires the OPA to be headed by a patient advocate who is
appointed by the Governor and who serves at the pleasure of
the Governor.
Specifies that the duties of the OPA include, but are not
limited to:
Developing educational and informational guides for
consumers describing their rights and
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responsibilities, and informing them of effective ways
to exercise their rights to secure health coverage, as
specified;
Compiling an annual publication, to be made
available on the office's website, containing a
quality of care report card, as specified;
Rendering advice and direct assistance to consumers
regarding:
a. Filing of complaints, grievances, and
appeals, including appeals of denials of care, as
specified, with the appropriate regulator or
public program;
b. Problems related to health care services,
including care and service problems, and claims
or payment problems, as specified;
Advising consumers on problems related to mental
health parity and coverage for substance abuse
treatment, consistent with state and federal law, as
specified;
Making referrals to the appropriate state agency
regarding studies, investigations, audits, or
enforcement that may be appropriate to protect the
interests of consumers; and,
Coordinating and working with other government and
nongovernment patient assistance programs and health
care ombudsman programs.
Requires the OPA to employ necessary staff, and authorizes
OPA to employ or contract with experts when necessary to
carry out the functions of the office. Requires the
patient advocate to make annual budget requests for the
office, which shall be identified in the annual budget act.
Requires the OPA to have access to records of DMHC and CDI,
as specified.
Requires the OPA to annually issue a public report on the
activities of the office, and to appear before the
appropriate legislative policy and fiscal committees, if
requested, to report and make recommendations on the
activities of the office.
Directs the OPA to also do all of the following:
Provide outreach and education about health care
coverage options including, but not limited to,
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information regarding the cost of coverage and
education about how to navigate the health care arena,
including what health services a carrier offers or
provides, how to select a plan or insurer, and how to
find a doctor or other health care provider.
Advise and assist consumers regarding eligibility
for coverage, including enrollment in, retention in,
and transitions between, coverage programs by
providing information, referral, and direct
application assistance for all types of payors,
including public programs such as Medi-Cal, HFP,
Medicare, private individual coverage,
employer-sponsored coverage, Employee Retirement
Income Security Act (ERISA) plans, charity care,
unsubsidized Exchange coverage, and Exchange coverage
with tax subsidies and/or tax credits.
Advise and assist consumers to resolve problems
with obtaining federal premium tax credits.
Operate a HealthHelp toll-free telephone hotline
that can route callers to the proper regulator, public
program, carrier, or consumer assistance program in
their area and provide interpreters for limited
English proficiency callers.
Operate a HealthHelp website, other social media,
and up-to-date communication systems to provide public
information regarding consumer assistance programs.
Requires the OPA to collect, track, quantify, analyze, and
publicly report on problems, inquiries, and complaints
encountered by consumers, including, but not limited to,
the complaints reported to health consumer assistance
organizations and agencies, according to the nature and
resolution of the complaints and, including, but not
limited to, information by carrier, type of coverage
program, timeliness of resolution, health status, age,
race, ethnicity, language, geographic region, gender,
gender identity/expression, or sexual orientation of the
complainants in order to identify the most common types of
problems and the problems faced by particular populations,
including any health disparity population, as specified.
Requires the OPA to publicly report its analyses of these
problems and inquiries at least quarterly on its website
and to collect and report data to the United States
Secretary of Health and Human Services (HHS) on the
categories of populations, as specified.
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Requires the OPA, in analyzing and reporting complaints, to
take into account the number of individuals enrolled by
each carrier and in each coverage program.
Permits the OPA to contract with community-based consumer
assistance organizations to assist in any or all of its
duties, as specified. Requires these programs to have, as
their primary mission, the assistance of health care
consumers, and other specified experience. Further
requires these programs to qualify as "navigators" under
the Exchange, as specified.
Requires the OPA to develop protocols, procedures, and
training modules and to implement and oversee a training
program for contracted organizations with continuing
education components. Also requires the OPA to adopt
standards for contracted organizations regarding
confidentiality and conduct. Authorizes OPA to revoke the
contract of organizations that violate these standards, as
specified.
Authorizes the OPA to contract with consumer assistance
programs to develop a series of appropriate literacy level
and culturally and linguistically appropriate educational
materials in all threshold languages for consumers
regarding health care coverage options and how to resolve
problems. Requires these materials to be made available to
all consumer assistance programs and on the OPA website.
Requires the OPA to develop protocols and procedures for
the resolution of consumer complaints and the establishment
of responsibility or referral, as appropriate, to the
appropriate public program or regulator.
Requires DMHC, CDI, DHCS, MRMIB, the Department of Public
Health (DPH), and the Exchange to report data and other
information to the OPA regarding consumer complaints
submitted to those agencies, as specified. Also requires
this information to be reported according to the particular
carrier involved.
Creates the OPA Trust Fund in the State Treasury, and upon
appropriation by the Legislature, requires moneys in the
fund to be made available for implementing the provisions
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of this bill. Directs the OPA to establish and maintain a
prudent reserve.
Requires funding for the actual and necessary expenses of
the OPA to be provided, subject to appropriation by the
Legislature, from the Managed Care Fund and the Insurance
Fund, as specified.
Requires the OPA to apply to HHS for a grant, as specified.
Permits OPA to apply for other federal grants, and to the
extent permitted by federal law, to seek federal funding
for assisting beneficiaries of the Medi-Cal Program.
FISCAL IMPACT
According to the Assembly Appropriations Committee
analysis:
1)One-time state costs to expand the OPA, not likely to
exceed $1 million.
2)Ongoing increased special fund/federal fund costs to fund
the increased workload, likely in the range of several
million dollars annually. This estimate is subject to
uncertainty and the actual cost could exceed this amount.
The bill specifies that funding is to be provided
through federal grant funding as well as fee revenue from
existing regulatory fees paid by carriers.
3)Unknown potential increased costs to existing local and
state entities that provide complaint resolution and
consumer assistance services, to the extent interaction
with the OPA increases the number of referrals to these
entities.
4)Unknown, potentially significant costs to state entities
including DMHC, CDI, DHCS, MRMIB, DPH, and the Exchange
to collect and submit specific data regarding consumer
complaints to the OPA.
BACKGROUND AND DISCUSSION
According to the author, California currently has a
fragmented system for consumer assistance with health care
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coverage complaints. There are eight governmental entities
and several private, nonprofit entities that provide a
number of services for assistance with public and private
health care coverage. These services include advice on
coverage options, education about how to navigate the
system, assistance with complaints and grievances,
assistance in choosing a health plan and finding a
provider. These entities also respond to complaints about,
among other things, eligibility, coverage of services, and
timely access to providers.
The author asserts that the coverage provisions and
insurance requirements in PPACA are complex and have
varying effective dates, which could lead to consumer
confusion. The author believes that it is imperative that
Californians be provided with a single source of correct
and current information. In addition to information about
coverage options, California health care consumers need
help when they have problems with their health coverage,
including care denials, coverage terminations and billing
problems. The author also states that, given California's
diverse population, assistance needs to be provided in
multiple languages, but acknowledges that, in the present
fiscal crisis climate, there are no new state funds that
could be used for this purpose. Therefore, the author
asserts that California must consolidate and coordinate
existing consumer assistance programs and combine funding
sources for more efficient use of funds.
The author states that AB 922 establishes the OPA
independently in state government to position California to
receive further federal grant monies made available through
PPACA for consumer assistance, and provides for more clear
and understandable consumer assistance by expanding and
strengthening current programs operating at the local
level. The OPA would also collect and compile data about
consumers' problems, allowing an important window into the
types of health care problems Californians face.
Patient assistance provisions in federal health reform
On March 23, 2010, President Obama signed PPACA. It is
estimated that 4.7 million California children and adults
who were uninsured during some part of 2009 will be
eligible for health coverage under PPACA. Among other
provisions, the new law makes statutory changes affecting
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the regulation of and payment for certain types of private
health insurance. The law also significantly expands
health care coverage to currently uninsured individuals
through public program expansions, a mandate to purchase
coverage, a temporary high-risk pool program, and by
requiring guaranteed issue of coverage. It is anticipated
that millions of currently uninsured persons in California
will obtain coverage under the provisions of PPACA.
PPACA also contains provisions to provide funding for
states to establish health insurance consumer assistance
programs. In order to be eligible to receive a grant,
states are required to designate an independent office of
health insurance consumer assistance that, directly or in
coordination with state health insurance regulators and
consumer assistance organizations, receives and responds to
inquiries and complaints concerning federal and state
health insurance requirements. DMHC, in partnership with
the OPA, has been awarded $3.4 million to:
Develop and promote a coordinated,
consumer-friendly website and corresponding toll-free
number that consumers can call with questions about
health care coverage, and to receive assistance with
the filing of complaints and appeals.
Conduct a statewide media campaign to educate
consumers about their rights and responsibilities, and
to provide assistance with enrollment in group health
plans or health insurance coverage.
Evaluate the effectiveness of the initiatives, and
track and quantify consumer problems and inquiries,
for reporting to state and federal policymakers.
Implementation of the PPACA will lead to millions of more
Californians enrolled in coverage, including expansions of
public programs. Consumers will also have expanded choices
of coverage and different options to use, should they lose
a source of job-based coverage, have a child, divorce, or
have an increase in income. All of these changes will
affect eligibility, making it all the more necessary to
establish one entity to help them with their health
coverage.
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California's current system of consumer assistance
California currently has a fragmented system for consumer
assistance with health care coverage complaints. Entities
that provide services for assistance with public and
private health care coverage include:
Government Entities: HMO HelpLine, Medi-Cal
Managed Care (MCMC) Ombudsman, CDI Consumer Hotline
(applies to all types of insurance) Department of
Labor, the Employee Benefits Security Administration
(EBSA), 1-800-Medicare, county welfare offices, the
OPA, and the Exchange (forthcoming);
Nonprofit Entities: Health Consumer Alliance
(HCA), Health Insurance Counseling and Advocacy
Program (HICAP), and Certified Application Assistors
(CAAs).
These services include advice on coverage options,
education about how to navigate the system, assistance with
complaints and grievances, and assistance in choosing a
carrier and finding a provider. These entities also
respond to complaints about, among other things,
eligibility, coverage of services, and timely access to
providers.
Community-based consumer assistance programs
There are a number of community-based organizations in
California that provide assistance to health care
consumers. The HCA helps low-income Californians in 13
counties. Each health consumer center runs a hotline to
assist consumers by telephone and provides in-person visits
as well as outstationed services in hospitals, courts, or
farm fields. Consumers can also email an office for
assistance. The HCA helps consumers regardless of their
type of coverage. The HCA programs provide a range of
types of services including advice and referrals to the
consumer, assisting with communication between the consumer
and a health care entity by conducting a conference call or
calling on behalf of the consumer and clarifying coverage,
plan or provider policies; and providing direct
representation in health plan appeals, administrative fair
hearings and other adjudications. The HCA collects data
about the types of problems faced by the thousands of
health care consumers they help each year. Based on this
data, the HCA can identify systemic problems faced by
consumers.
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HICAP provides free and objective information and
counseling about Medicare. Volunteer counselors help
Medicare beneficiaries understand their rights and health
care options. HICAP also offers free educational
presentations to groups of Medicare beneficiaries, their
families and/or providers on a variety of Medicare and
other health insurance-related topics.
CAAs are placed in community settings to help families
complete and submit the joint HFP/Medi-Cal application.
These community-based entities play a crucial role in
providing information to thousands of Californians
(primarily low income, many with LEP) about health coverage
options and helping them to get enrolled and properly use
their insurance coverage. CAAs are trained and certified
by MRMIB to help Californians understand their coverage
options and enroll in health coverage. CAAs are often
bilingual, come from the communities they serve, and can be
employed by Federally Qualified Health Centers, Rural
Health Centers, regional nonprofit organizations, and
schools, etc. Throughout California, these entities have
developed strong and trusting relationships within their
communities and are valued by local families needing
information about health coverage.
Related legislation
SB 615 (Calderon) requires, on and after January 1, 2013,
solicitors and solicitor firms, and principal persons
engaged in the supervision of solicitation for health care
service plan contracts to complete specified training, and
requires the Insurance Commissioner's (Commissioner)
curriculum board to make recommendations to the
Commissioner for the instruction of accident and health
agents about the requirements imposed by PPACA. Pending
hearing in Assembly Health Committee.
AB 736 (Calderon), among other things, would have
authorized a person licensed to transact accident and
health insurance to be an agent, a broker, or both, and
would have removed the restriction that a life licensee
only be a life agent. Held on suspense in Assembly
Appropriations Committee.
Prior legislation
SB 900 (Alquist), Chapter 659, Statutes of 2010,
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establishes the California Health Benefit Exchange as an
independent public entity within state government.
Requires the Exchange to be governed by a board composed of
the Secretary of California Health and Human Services, or
his or her designee, and four other members appointed by
the Governor and the Legislature who meet specified
criteria.
AB 1602 (J. Perez), Chapter 655, Statutes of 2010,
specifies the powers and duties of the Exchange relative to
determining eligibility for enrollment in the Exchange and
arranging for coverage under qualified health plans.
Requires the Exchange to provide health plan products in
all five of the federal benefit levels (platinum, gold,
silver, bronze and catastrophic). Requires health plans
participating in the Exchange to sell at least one product
in all five benefit levels in the Exchange, and to sell
their Exchange products outside of the Exchange. Requires
health plans that do not participate in the Exchange to
sell at least one standardized product designated by the
Exchange in each of the four levels of coverage, if the
Exchange elects to standardize products.
AB 2787 (Monning) of 2010 would have established the Office
of the California Health Ombudsman, governed by a chief
executive officer known as the California Health Ombudsman,
and would have required the Ombudsman to educate consumers
on their health care coverage rights and responsibilities,
assist consumers with enrollment in health care coverage,
and resolve problems with obtaining federal premium tax
credits. Held on suspense in the Senate Appropriations
Committee.
AB 51 (Dymally) of 2006 would have required the OPA to
include in its annual health plan report card information
on quality of care and access provided by Medicare
prescription drug plans. Failed passage out of Assembly
Appropriations Committee.
AB 2170 (Chan) of 2006 was substantively similar to AB 51
(Dymally). Vetoed.
Arguments in support
Health Access California (HAC), a cosponsor of this bill,
writes that enactment of federal health reform means that
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virtually every Californian will have access to quality,
affordable health care. Existing programs, including the
HMOHelp Line, have done much of what is contemplated in
this bill, but not all. HAC contends a state-level
ombudsman who serves as the first line of triage for
consumer complaints, while leaving the respective
regulators and sources of coverage the responsibility for
resolving specific complaints and grievances, is necessary.
HAC asserts that this bill will result in a robust
response to grievances and complaints about the health care
system.
Western Center on Law & Poverty (WCLP), also a cosponsor,
writes that uninsured persons have different needs than
those who are consistently covered. This includes people
who primarily speak a language other than English, those
who have never navigated a health insurance plan, and those
who have never consistently seen a health care provider.
For all those reasons, WCLP states that Californians need a
centralized hub when dealing with questions or problems
with their coverage. WCLP argues that AB 922 leverages
existing consumer assistance programs by allowing OPA to
contract with community based organizations that already
provide consumer assistance services, many of which are
experts in public programs, while ensuring that the most
qualified organizations can assist consumers in
community-based settings in a linguistically and culturally
appropriate manner. WCLP asserts that this
"hub-and-spokes" approach has been effective in states like
New York, which allows one nonprofit organization to
coordinate with other community organizations to assist
health consumers.
Consumers Union argues that AB 922 positions California to
maximize federal funds for ombudsman and consumer
navigation services, which is critically important to have
in place well in advance of the mandate for individual
coverage that takes effect in 2014. The American
Federation of State, County and Municipal Employees states
that this bill would greatly facilitate California's
ability to comply and cope with federal health reform, and
that the state cannot offer its residents adequate
assistance in this matter currently.
The 100% Campaign, PICO California and the California
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Coverage & Health Initiatives state that California has
more than seven million uninsured persons, including over
one million children, yet there is no one single place for
families to obtain clear and concise information and
support. This bill not only builds toward future
implementation of PPACA, it provides a needed network to
reach out to hundreds of thousands of children who are
currently uninsured but eligible for California's public
program coverage.
The California Optometric Association writes in support,
stating that OPA will provide a "one-stop-shop" that
consolidates the existing fragmented system into one office
to provide clear, concise and up-to-date information to
consumers. The California Chiropractic Association (CCA)
believes that it is essential to provide consumers support
in making coverage choices and for consumer coverage
complaints. By operating as an independent state entity,
CCA believes that OPA will synthesize a fragmented health
care information coverage, outreach and complaint system.
Arguments in support if amended
The California Association Marriage and Family Therapists
raises concerns that the bill does not expressly include
mental health coverage as one of the areas that OPA will be
able to answer questions about and resolve problems with.
Arguments in opposition
The California Association of Health Plans (CAHP) opposes
AB 922 on the grounds that California already has consumer
advocacy programs under each regulator that are funded by
the industry through assessments and taxes that cost the
industry and its consumers millions of dollars. CAHP
states that this new entity does not provide any order to
the myriad of assistance programs currently available to
consumers, and instead adds a new layer of government
bureaucracy designed largely to forward calls back to the
regulator. CAHP supports consolidation of existing
consumer related functions, and argues that consolidation
could lead to more uniformity and clarity for consumers.
The Association of California Life and Health Insurance
Companies (ACLHIC) concurs with CAHP, and argues that AB
922 has the potential to increase the cost of health care
by increasing the fees imposed on carriers. ACLHIC points
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out that the industry currently funds consumer assistance
programs at DMHC, OPA and CDI, and existing law requires
carriers to include their respective regulator's consumer
complaint number on claims forms, as well as other written
notices that go out to enrollees and insureds. ACLHIC also
asserts that there is no real evidence supporting the
concept of adding an additional independent office for
consumer assistance.
The California Right to Life Committee (CRLC), Inc. writes
that AB 922 advances the federal Patient Protection and
Affordable Care Act when presently there are serious
challenges to its constitutionality, and that it would be
better public policy not to depend on federal tax dollars
under these circumstances. CRLC also contends that this
bill "is another attempt to promote family planning and
abortion services to low-income persons and non-English
speaking populations".
PRIOR ACTIONS
Assembly Health: 12- 6
Assembly Appropriations:12- 5
Assembly Floor: 51- 27
COMMENTS
1. Role of OPA. The author's intent is for the OPA to
serve both a central switchboard function, and to provide
direct consumer assistance for general and basic inquires,
including assistance with filing grievances. The author
may wish to clarify that the ultimate authority to handle
and adjudicate grievances falls under the purview of DMHC,
CDI or the agency or department responsible for the public
program.
2. Suggested technical amendments:
(a) On page 4, at the end of line 9 insert:
"the Medicare program"
(b) On page 4, line 32 replace "Web site" with
"website"
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(c) On page 6, line 7 insert between "all" and
"telephonic,":
"forms of communications including, but not limited
to, mail"
(d) On page 8, strike out lines 17-20
POSITIONS
Support: Health Access California (co-sponsor)
Western Center on Law and Poverty (co-sponsor)
100% Campaign
American Federation of State, County and
Municipal Employees
Asian Pacific American Legal Center
California Association of Marriage and Family
Therapists (if amended)
California Children's Health Initiatives
California Chiropractic Association
California Coalition for Mental Health
California Coverage & Health Initiatives
California Family Resource Association
California Immigrant Policy Center
California Optometric Association
California Pan-Ethnic Health Network
California Rural Legal Assistance Foundation
Children Now
Children's Defense Fund-California
Children's Health Initiatives of Greater Los
Angeles
The Children's Partnership
Congress of California Seniors
Consumers Union
First 5 Association of California
Having Our Say
Health Consumer Center
Inland Empire United Way
Maternal and Child Health Access
Mental Health Association in California
National Alliance on Mental Illness California
National Association of Social Workers -
California Chapter
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National Health Law Program
Neighborhood Legal Services of Los Angeles County
PICO California
SEIU California
Unitarian Universalist Legislative Ministry
Action Network, CA
United Ways of California
Youth Law Center
Oppose:Association of California Life and Health Insurance
Companies
California Right to Life Committee, Inc.
California Association of Health Plans
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