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---



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          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 




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                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 




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            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 




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            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.




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             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 




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            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 




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            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 




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            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 




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               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




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                    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
          
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