BILL ANALYSIS Ó SENATE COMMITTEE ON HEALTH Senator Ed Hernandez, O.D., Chair BILL NO: SB 1431 AUTHOR: De León AMENDED: April 9, 2012 HEARING DATE: April 11, 2012 CONSULTANT: Trueworthy SUBJECT : Stop-loss insurance coverage. SUMMARY : Establishes minimum attachment points for stop-loss policies issued, as defined, to employers in the small group health insurance (small group) market. Requires guarantee issue for all employees and dependents and guarantee renewability of the policy for the small employer. Existing law: 1.Provides for the regulation of health insurers (insurers) by the California Department of Insurance (CDI) under the Insurance Code. 2.Prohibits a person from transacting any class of insurance business, including health insurance, in this state without first being an admitted insurer. 3.Prohibits an insurer from issuing any health insurance policy once CDI notifies the health insurer that the filed form does not comply with specified requirements. 4.Prohibits a health insurance policy from being issued or delivered to any person in this state unless specified requirements have been met, including that a copy of the form and premium rates are filed with the Commissioner. 5.Prohibits a group health plan and a health insurance issuer offering group or individual health insurance coverage from imposing any pre-existing condition exclusion with respect to the plan or coverage commencing January 1, 2014. 6.Establishes the federal Patient Protection and Affordable Care Act (PPACA), which imposes various requirements on states, carriers, employers, and individuals regarding health care coverage. Continued--- SB 1431| Page 2 7.Establishes and specifies the duties and authority of the California Health Benefit Exchange (Exchange). 8.Requires carriers that sell any products outside the Exchange, as a condition of participation in the Exchange, to fairly and affirmatively offer, market, and sell all products made available in the Exchange to individuals and small employers purchasing coverage outside of the Exchange. This bill: 1.Establishes the following definitions: a. Attachment point means the total number of health claims incurred by a small employer in a policy year for its employees and their dependents above which the stop-loss carrier incurs a liability for payment. b. Individual attachment point means the total number of health claims incurred by a small employer in a policy year for an individual employee or dependent of an employee above which the stop-loss carrier incurs a liability for payment. c. Aggregate attachment point means the total number of health claims incurred by a small employer in a policy year for all covered employees and their dependents above which the stop-loss carrier incurs a liability for payment. d. Direct coverage means that an insurance company assumes a direct obligation to an employee under an insurance policy to pay or indemnify the employee for health claims incurred by the employee or the employee's dependents. e. Expected claims means the total number of health claims that, in the absence of a stop-loss insurance policy or other insurance, are projected to be incurred by a small employer for its employees and their dependents. f. Policy year means the 12-month period that is designated as the policy year for the stop-loss insurance policy. If the stop-loss insurance policy does not designate a policy year, the policy year is the year in which the total number of health claims incurred by a small employer for an individual employee or dependent of an employee, or the aggregate amount for all covered employees and their dependents, are added together for the SB 1431 | Page 3 purposes of determining whether the claims have exceeded the attachment point. g. PPACA 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), and any rules, regulations, or guidance issued pursuant to that law. h. Stop-loss carrier means an insurance company or other entity providing individual or aggregate stop-loss insurance coverage, or any other assumption of risk, to a small employer for the health claims of its employees and their dependents. i. Stop-loss insurance policy means a policy, contract, certificate, or statement of coverage between a stop-loss carrier and small employer providing individual or aggregate stop-loss insurance coverage, or any other assumption of risk, to a small employer for the health claims of its employees and their dependents. 2.Requires a stop-loss carrier to offer coverage to all employees and dependents of a small employer to which it issues a stop-loss insurance policy. 3.Prohibits a carrier from excluding any employee or dependent on the basis of actual or expected health status-related factors. 4.Requires a stop-loss carrier to renew, at the option of the small employer, all stop-loss insurance policies, with the following exceptions: a. For nonpayment of the required premiums by the small employer; b. If the stop-loss carrier demonstrates fraud or an intentional misrepresentation of material fact by the small employer under the terms of the stop-loss insurance policy; c. If the stop-loss carrier has been determined by the Commissioner to be financially impaired; and d. If the stop-loss carrier ceases to write, issue, or administer new stop-loss insurance policies in this state. 1.Prohibits a stop-loss carrier from issuing a stop-loss insurance policy to a small employer that contains certain individual or aggregate attachment points, described below, for a policy year or provides direct coverage of an employee's health claims. SB 1431| Page 4 a. Contains an individual attachment point of $95,000; and b. Contains an aggregate attachment point for a policy year that is lower than the greater of one of the following: i. $19,000, times the total number of covered employees and dependents; ii. 120 percent of expected claims; or iii. $95,000. 2.Allows CDI, by regulations, to amend the dollar amounts six months prior to their effective dates. 3.Establishes that a stop-loss carrier in violation of these provisions is subject to administrative penalties and directs those fine and penalty moneys received to the General Fund to be available upon appropriation by the Legislature. 4.Limits the provisions of this bill to small employers. FISCAL EFFECT : This bill has not been analyzed by a fiscal committee. COMMENTS : 1.Author's statement. According to the author, SB 1431 will protect consumers in California's small group market as the ACA is implemented. The ACA puts in motion a number of significant small group market reforms and creates a competitive marketplace through the Exchange. However, as federal health care reform goes into full effect, there will be incentives for some small employers to self-insure and to purchase stop-loss coverage. The author states this situation could lead to a significant exodus of small employers from the small group market, specifically those employers with young and healthy employees. If this situation occurs, adverse selection could leave in its wake a majority of the state's small businesses in an insurance pool increasingly subject to skyrocketing premiums, both inside and outside of the Exchange. The author states that even those that self-insure and buy a stop-loss product may soon end up in this pool if the stop-loss carrier decides to drop them. According to the author, without this bill, stop-loss insurers would continue to consider health status and medical history in the offering of its products. This means that a stop-loss carrier is able to "cherry-pick" both which small businesses SB 1431 | Page 5 to sell to and even which individuals to exclude within a small group to which it is offering its product, leaving certain individuals without health insurance coverage. SB 1431 is necessary to prevent the state's small group market from falling victim to adverse selection and unsustainable premium levels and protecting California's small businesses, its employees, and the success of the post-ACA insurance market. 2.Self-insured health plans. Self-insurance is an arrangement where the employer assumes direct financial responsibility for the cost of providing health or disability benefits to employees with its own funds. Employers sponsoring self-funded plans typically contract with a third-party administrator or insurer to provide administrative services for the self-funded plan. The terms of eligibility and coverage are set forth in a plan document which includes provisions similar to those found in a typical group health insurance policy. Such plans' rights and obligations are governed under the Employee Retirement Income Security Act of 1974 (ERISA). Under ERISA, self-funded plans are exempt from state insurance laws, including reserve requirements, mandated benefits, premium taxes, and consumer protection regulations. ERISA plans are also exempt from the ACA requirements on establishing essential health benefits. In some cases, the employer may buy stop-loss coverage from an insurer to protect the employer against very large claims. 3.Stop-loss insurance. Stop-loss insurance is sold to employers that self-insure their employee's health care coverage to limit the employer's financial exposure. Stop-loss insurance is available in two forms: a. Specific stop loss where coverage is initiated when a claim reaches the threshold selected by the employer. After the threshold is reached, the stop-loss policy would pay claims up to the lifetime limit per employee. b. Aggregate stop loss where coverage is initiated when the employer's self-insurance total group health claims reach a stipulated threshold selected by the employer. According to the Kaiser Family Foundation's 2011 Annual SB 1431| Page 6 Employer Health Benefits Survey, 58 percent of workers in self-funded health plans are enrolled in plans covered by stop-loss insurance. Workers in self-funded plans in small firms are more likely than workers in self-funded plans in larger firms to be in a plan with stop-loss protection (72 percent compared to 57 percent). About 81 percent of workers in self-funded plans that have stop-loss protection are in plans where the stop-loss insurance limits the amount the plan spends on each employee. The report's executive summary states the average per employee claims cost, at which stop-loss insurance begins paying benefits, is $78,321 for workers in small firms (3 to 199) with stop-loss plans, and $208,280 for workers in larger firms with self-funded plans. According to the California HealthCare Foundation 2011 California Employer Health Benefits Survey, one-third of Californians were enrolled in a partly or completely self-insured plan in 2011, which is nearly half of the national average. Almost 30 percent of California employers with a self-insured plan purchased stop-loss insurance in 2011 to protect them against large claims. Large firms were significantly more likely than small firms to do so (84 percent compared to 23 percent). SB 1431 is limited to small employers defined in California law as having between 2 and 50 employees. 4.National Association of Insurance Commissioners (NAIC) model. The NAIC adopted the Stop Loss Insurance Model Act in 1995, revised in 1999, which states that an insurer shall not issue a stop-loss insurance policy that: a. Contains an individual attachment point of $20,000 and b. Contains an aggregate attachment point for a policy year, for groups of 50 or fewer, that is lower than the greater of one of the following: i.$4,000 times the number of group members; ii.120 percent of expected claims; or iii.$20,000. The NAIC is currently in the process of updating their Stop Loss Insurance Model Act and a report is expected in August of 2012. SB 1431 | Page 7 1. Stop-loss regulations in other states. Nineteen states have laws, regulations, or guidance on the books pertaining to stop-loss insurance. Fifteen states regulate minimum attachment points in stop-loss policies in some fashion, with six of those states adopting a law or regulation that is similar to the NAIC Stop Loss Insurance Model Act. Delaware, New York, and Oregon prohibit the sale of stop-loss insurance to small employers. New York and North Carolina also prohibit insurers from serving as third-party administrators for self-funded small employers. 2.ACA. According to a February 2012 article in Health Affairs by Mark A. Hall, "Regulating stop-loss coverage may be needed to deter self-insuring small employers from undermining market reforms," the ACA will fundamentally reshape individual and small group markets, prompting many changes in how employers participate in these markets. Some employers will drop insurance altogether, others will purchase insurance through the new exchanges, and still others will consider self-insuring their workers' health coverage. Self-insuring has been a common practice to avoid mandated benefits and other state regulations. The author writes that self-insuring enables small employers to avoid the ACA's requirement that insurers cover essential health benefits. There is also concern that self-insuring can result in healthy individuals being removed from the community rating group. The ACA requires insurance sold in the small group be community rated rather than allowing insurers to base premiums on the documented health risks of each group. According to the author of the article, community rating, along with other ACA market reforms, will founder or fail if younger or healthier groups can easily avoid reforms by self-insuring. Community rating can successfully spread risks across the small group market if self-insuring is unattractive or too expensive for most small employers. Currently, that is the case for most small employers because of the inherent risks of self-insuring. A catastrophic injury or illness of one or more employees could run into millions of dollars of health care costs, which could bankrupt all but the largest firms. The ACA creates several market changes that could drive small employers to self -insure. 3.Related legislation. SB 961 (Hernandez) would reform California's individual market in accordance with federal SB 1431| Page 8 health care reform and apply its provisions to health plans and disability insurers in the individual market. SB 961 passed the Senate Health Committee on April 18, 2012 on a vote of 6-2 and is now pending before the Senate Appropriations Committee. AB 1461 (Monning) is identical to SB 961. AB 1461 passed the Assembly Health Committee on April 17, 2012 on a vote of 13-6 and is now pending before the Assembly Appropriations Committee. 4.Prior legislation. SB 900 (Alquist), Chapter 659, Statutes of 2010, and AB 1602 (John A. Pérez), Chapter 655, Statutes of 2010, established the Exchange. 5.Support. Insurance Commissioner Dave Jones (Commissioner) writes in support that SB 1431 would protect the state's small businesses from skyrocketing health premiums by specifying minimum attachment points in stop-loss insurance policies sold to small employers. Though self-insurance is more common among large employers, there are some small employers that make the decision to self-insure, a decision that involves greater risk since the health care costs of their employees could end up costing more than expected. The Commissioner argues SB 1431 is necessary to prevent the state's small group insurance market from falling victim to adverse selection and unsustainable premium levels and protecting California's small businesses, its employees, and the success of the post-ACA insurance market. Blue Shield of California writes in support that by increasing the minimum attachment point for stop-loss coverage in the small group market, SB 1431 will send a strong signal to the market that illusory self-insurance to small groups will not be permitted. SB 1431 is largely based upon model legislation from the NAIC, which has been adopted in some form by 16 states. Blue Shield states they are a strong supporter of the ACA and believes the state must adopt policies that promote the success of the Exchange and health reform. The California Association of Physician Groups writes in support that SB 1431 will require appropriate attachment points for stop-loss insurance sold to small employers and that SB 1431 prohibits discrimination against an individual based on health status. Consumer Federation of America writes in support that SB 1431 will help ensure that the small group SB 1431 | Page 9 health market, both inside and outside of the Exchange, is successful and sustainable for the state's small employers and their employees in the post-ACA insurance market. SEIU California supports SB 1431 writing it will protect the small group market from higher premiums and adverse selection as federal health care reform is implemented. 6.Support with amendments. Health Access California (Health Access) supports SB 1431 stating it will provide important protections for small employers. Health Access seeks three additional amendments to improve the measure. First, Health Access argues that stop-loss insurance should be subject to rate review. Health Access also seeks an amendment to require clear disclosure to the small employer regarding their financial risk. And finally, while Health Access supports an automatic escalator of the attachment point dollar figures contained in SB 1431 but contends it should be tied to the higher of the mean or median of the rate increases in the small group market. 7.Oppose. The California Chamber of Commerce and the National Federation of Independent Business write in opposition to SB 1431 that it will severely limit small employers opportunity to select the most appropriate, affordable health care coverage to their employees as self-insurance. They argue that many small businesses in California struggle to provide health care coverage for their employees, and it is imperative that affordable choices are available. Self-insurance combined with stop-loss coverage for excessive, unexpected claims, offers an option for some small employers. According to the opposition, this bill seeks to create an unreasonably high level at which the stop-loss coverage would apply. The opposition also cites an August 2011 study by RAND, "Employer self-insurance decisions and the implications of the Patient Protection and Affordable Care Act as modified by the Health Care and Education Reconciliation Act of 2010 (ACA)," which concluded that limiting small employers' ability to self-insure is associated with a decline in the total number of individuals enrolled in health insurance coverage. The RAND model predicts that allowing self-insurance mitigates this effect, so that total enrollment is higher in scenarios where self-insurance is allowed. Self-Insurance Institute of America (SIIA) writes that the cost of health insurance premiums has spiked for all SB 1431| Page 10 California employers and especially for smaller employers. SB 1431 would make this problem worse by effectively eliminating the self-insurance option for many companies within the state that otherwise must choose between absorbing increased costs every year or to drop health coverage altogether. SIIA argues that while self-insurance may not be a viable option for many smaller employers, an increasing number of such employers are operating successful self-insured group health plans that provide cost containment advantages and are customized to meet the specific needs of the plan participants. The California Association of Health Underwriters (CAHU) writes in opposition that SB 1431 forces small employers to take on significantly increased risk that is not actuarially supported. For a small employer to take on $95,000 of risk per person will have no other result than to force small employers to purchase fully insured plans. CAHU argues the unfortunate consequence will be that small employers will be forced to either pay higher costs or drop coverage altogether. 8.Concerns. CIGNA writes that they are concerned SB 1431 would regulate stop-loss insurance policies in an excessive and unprecedented manner. CIGNA contends that small employers value self-funding because it provides greater flexibility to design benefits and align them across state lines. CIGNA is concerned that SB 1431 would deprive self-insured small employers the ability to have stop-loss policies they can afford and that appropriately protect them from financial risk. The Association of California Life and Health Insurance Companies (ACLHIC) writes they are concerned about the methodology used to determine the statutory individual and aggregate attachment points that are currently in the bill. These particular attachment points appear to come from a market survey that simply aggregated different types of coverage and was not conducted using any sort of actuarial analysis. ACLHIC recommends that appropriate actuarial science be utilized to establish appropriate attachment points to ensure that those attachment points are viable and provide adequate reinsurance value to a small business. 9.Policy discussion. a. Attachment point figures. The NAIC model has an individual attachment point of $20,000; the Kaiser Family Foundation 2011 Employer Health Benefits survey executive SB 1431 | Page 11 summary cites $78,321 as the average individual attachment point for firms who have between 3 and 199 workers. SB 1431 has an individual attachment point of $95,000. According to 2011 CHCF California Employer Health Benefits Survey, the national average family coverage premium increase was 9.5 percent in 2011. Using the Kaiser Family Foundation average attachment point and then applying the national average family coverage premium increase of 9.5 percent, the $95,000 individual attachment point reflects the projected national average attachment point in 2014, the year the ACA is fully implemented. Is this the appropriate methodology to develop the attachment point figures? a. Should changes to the attachment point dollar figures be changed through regulations? SB 1431 allows the Commissioner, by regulations, to amend the dollar amounts six months prior to their effective dates. SB 1431 only requires the Commissioner to consider the medical components of the Consumer Price Index before adjusting the dollar figures. Should other factors be required to be considered? Should the Legislature weigh in on any changes? b. What happens to existing employers that self-fund and have a stop-loss attachment point below the requirements of SB 1431? SB 1431 would require all small employers to comply with the new attachment points. An employer with an existing stop-loss insurance policy would be required to find a new policy. 1.Committee amendments. a. Existing products. The Committee recommends adding language to exempt existing employers with an existing stop-loss product from the new requirements imposed by SB 1431. b. Changes to dollar figures. The Committee recommends deleting the provision to allow CDI, by regulations, to amend the dollar amounts six months prior to their effective dates (page 5, lines 33-37). The Legislature should consider and approve any policy changes related to stop-loss insurance including changing the attachment point dollar figure. c. Technical amendments to address drafting errors. SUPPORT AND OPPOSITION : Support: Insurance Commissioner Dave Jones (sponsor) Blue Shield of California SB 1431| Page 12 California Association of Physician Groups Consumer Federation of America Health Access California (if amended) SEIU California Oppose: California Association of Health Underwriters California Chamber of Commerce National Federation of Independent Business Self-Insurance Institute of America, Inc. Southwest California Legislative Council -- END --