BILL ANALYSIS Ó AB 2 X1 Page 1 ASSEMBLY THIRD READING AB 2 X1 (Pan) As Introduced January 29, 2013 Majority vote HEALTH 13-6 APPROPRIATIONS 12-5 ----------------------------------------------------------------- |Ayes:|Pan, Ammiano, Atkins, |Ayes:|Gatto, Bocanegra, | | |Bonilla, Bonta, Chesbro, | |Bradford, | | |Gomez, | |Ian Calderon, Campos, | | |Roger Hernández, | |Eggman, Gomez, Hall, | | |Lowenthal, Mitchell, | |Holden, Pan, Quirk, Weber | | |Nazarian, V. Manuel | | | | |Pérez, Wieckowski | | | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Logue, Maienschein, |Nays:|Harkey, Bigelow, | | |Mansoor, Nestande, | |Donnelly, Linder, Wagner | | |Wagner, Wilk | | | | | | | | ----------------------------------------------------------------- SUMMARY : Establishes health insurance market reforms contained in the Patient Protection and Affordable Care Act (ACA) specific to individual purchasers, such as prohibiting insurers from denying coverage based on preexisting conditions; and makes conforming changes to small employer health insurance laws resulting from new draft federal regulations. Specifically, this bill : Federal Conformity Issues 1)Revises existing law as amended by AB 1083 (Monning), Chapter 852, Statutes of 2012, to conform to draft federal rules related to risk pools and prohibits a plan or solicitor from employing marketing practices or benefit designs that will have the effect of discouraging the enrollment of individuals with significant health needs. 2)Authorizes a health plan or insurer to vary premium rates for a particular nongrandfathered small employer health benefit plan contract from its index rate based only on the following actuarially justified plan-specific factors: a) The actuarial value and cost-sharing design of the plan AB 2 X1 Page 2 contract or health benefit plan; b) The plan contract's or health benefit plan's provider network, delivery system characteristics, and utilization management practices; c) The benefits provided under the plan contract that are in addition to the Essential Health Benefits (EHBs). Requires these additional benefits to be pooled with similar benefits within the single risk pool and the claims experience from those benefits to be utilized to determine rate variations for plan contracts that offer those benefits in addition to EHBs; and, d) With respect to catastrophic plans, the expected impact of the specific eligibility categories for those plans. 3)Revises rating factors in existing small group law as follows: includes references to the age rating curve established by the Centers for Medicare and Medicaid Services (CMS), using the individual's age as of the effective date of the contract and specifies the three to one variation limitation is based upon like individuals of different ages who are 21 years of age or older, as described in federal regulations; and, six geographic regions and for 2015 and thereafter, subject to federal approval, 13 geographic regions. Requires the total premium charged to be determined by the sum of the premiums of covered employees and dependents in accordance with federal regulations. 4)Requires a health plan or insurer to fairly and affirmatively offer, market, and sell all of the plan's health benefit plans that are sold in the individual market for policy years on or after January 1, 2014, to all individuals and dependents in each service area in which the plan provides or arranges for health care services. Limits enrollment to open enrollment and special enrollment periods, as specified. 5)Prohibits in the individual market a health plan or insurer from imposing any preexisting condition provision upon any individual. 6)Prohibits in the individual market a health plan or insurer from establishing rules for eligibility, including continued eligibility, of any individual to enroll under the terms of an AB 2 X1 Page 3 individual health benefit plan based on any of the following factors: a) Health status; b) Medical condition, including physical and mental illness; c) Claims experience; d) Receipt of health care; e) Medical history; f) Genetic information; g) Evidence of insurability, including conditions arising out of acts of domestic violence; h) Disability; and, i) Any other health status-related factor as determined by federal regulations, rules, or guidance issued pursuant to federal law. 7) Specifies a health plan or insurer is not required to offer an individual health benefit plan or accept applications for the plan under specified circumstances, such as when an individual does not live or reside within the plan's approved service areas. Federal Conformity Except g) and h) and 63 days 8)Establishes as an initial open enrollment period from October 1, 2013 to March 31, 2014, and annually after that from October 15 to December 7. This is the period when individuals can purchase health insurance through Covered California, through the California Health Benefit Exchange (Exchange), now called Covered California, and in the commercial market. In addition, gives individuals 63 days to enroll under one of the following special enrollment trigger events: a) Loss of minimum essential coverage, as specified under federal requirements; AB 2 X1 Page 4 b) Gaining a dependent or becoming a dependent; c) Mandated coverage due to court order; d) Released from incarceration; e) Health benefit plan substantially violated a material provision of the contract; f) Gained access to a new health benefit plan as a result of a permanent move; g) Provider no longer participating in a plan and individual has a specified condition; h) Misinformed about minimum essential coverage; and, i) For Covered California any events listed under federal regulations. Federal Conformity except tobacco rating is excluded 9)Permits in the individual market only the following characteristics of an individual, and any dependent thereof, for purposes of establishing the rate of the health benefit plan: a) Age, pursuant to age bands established by the Secretary of Health and Human Services (HHS) and the age rating curve established by CMS. Rates based on age shall be determined using the individual's age as of the date of the plan issuance or renewal, as applicable, and shall not vary by more than three to one for like individuals of different age who are age 21 or older as described in federal regulations. b) Geographic regions based on six regions for 2014, and 13 regions for 2015 and each plan year thereafter, subject to federal approval if required, and obtained by the Department of Managed Health Care (DMHC) and the California Department of Insurance (CDI). Requires no later than June 1, 2017, DMHC and CDI in collaboration with the Exchange, to review the geographic rating regions and the impacts of those regions on the health care coverage market in California and make a report to the appropriate policy committees of the Legislature. AB 2 X1 Page 5 c) Whether the plan covers an individual or family, as described in the ACA. (The rating variation permitted shall be applied to each family member. However the total premium shall be determined by the sum of the premiums for each family member but for no more than the three oldest members under age 21.) California Specific Issues 10)Requires any data submitted by a health plan or health insurer to the Secretary of HHS, or her designee, for purposes of the risk adjustment program described in the ACA, to also be concurrently submitted to the DMHC or CDI. 11)Requires health plans and insurers to provide a notice to all applicants for coverage related to guarantee issue for children about other options for enrollment including new open enrollment options. Authorizes DMHC to develop a model notice requirement, in consultation with CDI. Authorizes CDI to develop a model notice requirement, in consultation with DMHC. Exempts this model notice authority from the Administrative Procedures Act. Sunsets this article on January 1, 2014. 12)Establishes definitions for individual market provisions, similar to the definitions established for the small group in existing law. Defines health benefit plan as any individual or group health plan or policy of health insurance as defined, and specifies what it does not include, such as Medi-Cal. Defines a dependent as the spouse or registered domestic partner or child of an individual, subject to applicable terms of the health benefit plan. 13)Requires a health plan or insurer outside the Exchange to inform an applicant for coverage that he or she may be eligible for lower cost coverage through the Exchange and the Exchange enrollment period. (Does not apply to grandfathered plans.) 14)Requires a health plan or insurer outside the Exchange to issue a notice to a subscriber that he or she may be eligible for lower cost coverage through the Exchange and shall inform the subscriber of the applicable open enrollment period provided through the Exchange. (Does not apply to grandfathered plans.) 15)Requires a grandfathered health benefit plan to issue the following notice annually and in any renewal material: AB 2 X1 Page 6 New improved health insurance options are available in California. You currently have health insurance that is exempt from many of the new requirements. For instance, your plan may not include certain consumer protections that apply to other plans, such as the requirement for the provision of preventive health services without any cost sharing and the prohibition against increasing your rates based on your health status. You have the option to remain in your current plan or switch to a new plan. Under the new rules, a health plan cannot deny your application based on any health conditions you may have. For more information about your options, please contact the California Health Benefit Exchange, the Office of Patient Advocate, your plan representative, an insurance broker, or a health care navigator. 16)Requires a plan participating in the Healthy Families program to notify a qualified beneficiary within 30 days of the operative date of opportunities to purchase or maintain coverage. Permits a qualified beneficiary to elect coverage within 60 days of the mailing of the notice. 17)Requires a qualified beneficiary receiving coverage pursuant to this part to make premium payments of not more than 110% of the average per subscriber payment made by the board or department to all participating plans for coverage provided. 18)Prohibits a health plan or health insurer from advertising or marketing an individual health benefit plan that is grandfathered for the purpose of enrolling a dependent for policy years on or after January 1, 2014. Nothing prevents a grandfathered plan from adding a dependent. EXISTING LAW : 1)Establishes DMHC to regulate health plans under the Knox-Keene Health Care Services Plan Act of 1975 in the Health and Safety Code; CDI to regulate health insurers under the Insurance Code; and, the Exchange to compare and make available through selective AB 2 X1 Page 7 contracting health insurance for individual and small business purchasers as authorized under the ACA. 2)Defines a grandfathered health plan as having the same meaning as that term is defined in the ACA. Federal law defines grandfathered health plan as any group health plan or health insurance coverage to which Section 1251 of the ACA applies (in general coverage that existed as of March 23, 2010, which can only enroll new individuals as dependents of existing covered individuals). 3)Prohibits a nongrandfathered health benefit plan for group or individual coverage from imposing any preexisting condition provision or waivered condition upon any enrollee, and requires on or after October 1, 2013, a plan to fairly and affirmatively offer, market, and sell all small employer health plan contracts for plan years on or after January 1, 2014, to all small employers in each service area, as specified (pursuant to AB 1083). 4)Establishes that premium rates for small employer health benefit plan contracts can vary only by age, pursuant to age bands, established by the Secretary of HHS, and based on the individual's birthday and shall vary by no more than three to one for adults; includes 19 geographic regions, as specified, with a report no later than June 1, 2017, reviewing the impact of the regions on the coverage market in California; and, whether the contract covers an individual or family, as described in the ACA (pursuant to AB 1083). 5)Requires health plans and insurers with contracts and policies in the individual market to allow without medical underwriting an individual to transfer once a year to a contract that has equal or lesser benefits. 6)Requires health plans and health insurers with contracts and policies in the individual market to offer an individual in a contract or policy that was rescinded without medical underwriting a new individual contract or policy with equal benefits. 7)Establishes notification and rate requirements for individuals eligible for coverage under the Health Insurance Portability and Accountability Act of 1996. 8)Establishes conditions for guaranteed issue of coverage for AB 2 X1 Page 8 children. FISCAL EFFECT : According to the Assembly Appropriations Committee, this bill would have special fund costs to the CDI Insurance Fund and Managed Health Care (DMHC Managed Care Fund) to adopt/modify regulations, review plan and insurer filings and respond to consumers. For CDI, costs are estimated at about $600,000 for fiscal year 2013-14 and $283,000 for 2014-15. DMHC's costs will likely be in a similar but lower range because DMHC plans will not be changing their business practices to the same extent that will be required by CDI insurers. COMMENTS : This bill contains clean-up provisions to AB 1083 which enacted insurance market reforms consistent with the ACA affecting health insurance sold to small employer purchasers and establishes insurance market reforms consistent with the ACA affecting the health insurance market for individual purchasers. An important general objective of the ACA state implementing legislation is to ensure that the rules in the Exchange and outside the Exchange, as well as in both the small group and individual markets, are as similar as possible in an effort to avoid adverse selection. Clean-up provisions are necessary because new draft federal regulations have been issued which require updating of the AB 1083 provisions. In addition, while the Legislature approved AB 1461 (Monning) and SB 961 (Ed Hernandez) in 2012, which would have established insurance market rules for individual purchasers, both bills were vetoed by the Governor because a provision to link or "tie back" state law to federal law was viewed as insufficient. As a result, Covered California has initiated a Qualified Health Plan (QHP) solicitation process based on assumptions of what might be the individual market rules in California. Health insurers bidding to be QHPs must submit premium bids to Covered California by March 31, 2013, in order to ensure they receive regulatory review in time for Covered California to begin marketing and offering those plans in October of 2013. The rules established and revised by this bill would apply to health insurance sold through Covered California as well as insurance products sold in the commercial market outside of Covered California, and need to be in place as soon as possible in time for the regulatory reviews required for QHPs. It is necessary to put the federal rules in state law for state regulatory enforcement purposes. On January 24, 2013, Governor Brown issued a proclamation to convene AB 2 X1 Page 9 the Legislature in Extraordinary Session to consider and act upon legislation necessary to implement the ACA in the areas of: 1) California's private health insurance market, rules and regulations governing the individual and small group market; 2) California's Medi-Cal program and changes necessary to implement federal law; and, 3) options that allow low-cost health coverage through Covered California to be provided to individuals who have income up to 200% of the federal poverty level. This bill along with SB 2 X1 (Ed Hernandez) address the first of the three areas identified in the Governor's proclamation. On March 23, 2010, the federal ACA (Public Law 111-148), as amended by the Health Care and Education Reconciliation Act of 2010 (Public Law 111-152) became law. Among many other provisions, the new law makes statutory changes affecting the regulation of and payment for certain types of private health insurance. Beginning in 2014, individuals will be required to maintain health insurance or pay a penalty, with exceptions for financial hardship (if health insurance premiums exceed 8% of household adjusted gross income), religion, incarceration, and immigration status. Several insurance market reforms are required, such as prohibitions against health insurers imposing preexisting health condition exclusions. These reforms impose new requirements on states related to the allocation of insurance risk, prohibit insurers from basing eligibility for coverage on health status-related factors, allow the offering of premium discounts or rewards based on enrollee participation in wellness programs, impose nondiscrimination requirements, require insurers to offer coverage on a guaranteed issue and renewal basis, and determine premiums based on adjusted community rating (age, family, geography and tobacco use). Final rules were issued on the ACA health insurance market rules on Friday, February 22, 2013. According to a February 6, 2013, Kaiser Family Foundation (KFF) article, "Why Premiums Will Change for People Who Now Have Nongroup Insurance," overall, it is expected that average, unsubsidized premiums in the nongroup (individual) market will be somewhat higher under the ACA as compared to today. This is because many people will be getting better insurance with EHBs like maternity care and mental health. (Note: California already mandates maternity and mental health parity for severe mental illness). Also patient cost sharing for out-of-pocket costs will be capped. Guaranteed access to coverage for people with preexisting conditions may increase average premiums as many people with higher costs come into the system. However, this should be balanced by more, healthy, young AB 2 X1 Page 10 uninsured people participating because of subsidies and the individual mandate. Restricting access to coverage during annual and special enrollment periods will reduce the likelihood that people will wait until they develop health problems before seeking coverage. The ACA provides for $20 billion in transitional reinsurance to offset adverse selection in the first three years of the program. The ACA also redistributes the premium burden among different enrollees by eliminating premium differences for gender and limiting variation in premiums due to age to a maximum of three to one. This has led to concerns about "rate shock" but premium increases for young people are mitigated by premium subsidies and that people under 30 can purchase catastrophic coverage. The KFF article details how each of the insurance market changes in the ACA may raise or lower premiums overall or redistribute them among different groups of people. In the big picture, the ACA addresses many of the shortcomings of the current individual market. The more competitive marketplace created under the ACA, greatly enhanced by the structure of premium tax credits, will push in the other direction forcing health plans to become more efficient and better managers of the premiums they receive. There is already some evidence that plans are working to create less costly, more efficient networks to offer with plans sold in exchanges. Provisions of the ACA are intended to address affordability of health care coverage. Subsidies for purchasing health insurance will be available in the Exchange for some individuals whose coverage costs exceed a certain percentage of their income, and other individuals will be exempt from the individual mandate if costs exceed a specified percentage of their income (8%). Surcharges associated with tobacco use and standards-based wellness incentive programs could make coverage unaffordable for some populations and take them out of the health insurance market altogether. While the ACA allows for tobacco rating, this bill does not include tobacco rating as a factor for determining premium rates. The ACA requires that each state establish geographic rating areas that must be applied consistently inside and outside the Exchange. The final federal rules allow states to establish rating areas by selecting from the following options: 1) one or more rating areas for the state; 2) based on county, three-digit zip code, or metropolitan statistical areas (MSAs) and non-MSA geographic AB 2 X1 Page 11 divisions; and, 3) are presumed adequate if the state established by law, rule, regulation, bulleting or other executive action uniform rating areas for the entire state as of January 1, 2013, or, the state establishes them in the same manner after January 1, 2013, that are no greater in number than the number of MSAs in the state plus one (there are 26 MSAs in CA). AB 1083 included a 19 rating region proposal, different than the region proposal in this bill and SB 2 X1. The 19 represent an expanded version of an earlier proposal developed by the California Association of Health Plans (CAHP) that split up Bay Area counties into their own regions because of an incorrect interpretation related to how the subsidies would be determined. To be consistent with the draft rules, this bill establishes, for both the small group market and the individual market, the geographic rating regions for the first year to be the existing Pre-Existing Condition Insurance Plan six rating regions. This bill then establishes 13 rating regions developed by CAHP for future years if federal approval is granted, again consistent with the proposed rules. Covered California has requested QHP bids due in March 2013 assuming that the 19 rating regions included in AB 1083 enacted prior to the issuance of draft federal regulations would be adopted by the Legislature and approved by the Governor for the individual market as well. As previously indicated, Governor Brown vetoed AB 1461 and SB 961 because the tie back provision was not sufficient to meet the Governor's concerns. AB 1461 and SB 961 contained a tie back for the state guarantee issue provision and the state community rating provision, meaning that if the federal guarantee issue and community rating requirements were to be repealed, the state guarantee issue and community rating provisions would automatically become inoperative at the state level. The Brown Administration has requested a broader tie-back to the ACA that would also make inoperative state provisions prohibiting preexisting condition exclusions and prohibiting eligibility rules based on health status factors. This bill creates a new requirement on health, dental, and vision plans covering the Healthy Families program (HFP) population to offer to children aging out of HFP at age 19 the same coverage at a premium rate of not more than 110% of the rate paid by the Managed Risk Medical Insurance Board. This requirement applies to individuals aging out of HFP on or after January 1, 2012, and is in AB 2 X1 Page 12 place until January 1, 2014, or six months after the operative date of this bill. This is a new provision intended to serve as a coverage bridge, particularly for 19 year olds with preexisting conditions until the ACA reforms are fully implemented in 2014. Supporters agree that this bill provides vital protection to California consumers of health care coverage. They write in support of the guaranteed issue of coverage provisions that prohibit insurers from denying coverage based on pre-existing conditions and other health status-related factors. The California Public Interest Research Group (CALPIRG) writes that in 2009 nearly 6.5 million Californians had pre-existing conditions that would have prevented them from attaining coverage in the individual market and that nationally 47% of individuals applying for insurance were either denied or offered insurance at a much higher rate. The Transgender Law Center argues that this bill will optimize coverage for all Californians and is fully inclusive of registered domestic partners to the same extent as spouses. Health Access California (HAC) and CALPIRG point out that this bill limits insurers to only raising rates one time per year which improves price stability and helps individuals and families to budget for their health coverage. Consumers Union (CU) and HAC support the limitation of the geographic regions, explaining that allowing more rating regions provides a greater opportunity in the rate making process for inappropriate targeting of certain subscribers forcing higher rates on those targeted populations. HAC and CU agree that while the ACA does allow for tobacco rating, this bill does not; that tobacco rating has not been proven to reduce smoking and can lead to pricing smokers, who need health insurance, right out of the market. The 100% Campaign, Children's Partnership, Children Now, and Children's Defense Fund, California all write that they support this bill in concept. They state the ACA implements considerable reforms including banning discriminatory practices by insurance companies of denying coverage to individuals with pre-existing conditions and charging higher rates to individuals based on health status. Currently, insurers are not allowed in California to deny coverage to children based on a pre-existing condition, but are still allowed to charge a sick child twice the premium of a healthy child and this bill eliminates that practice. Additionally, these groups believe that the notices to consumers as required in this bill will assist families in making better informed decisions on their health care coverage. AB 2 X1 Page 13 CDI is opposed to this bill unless it is amended. CDI writes that the selection of geographic rating regions is one the most significant choices the state has the authority to make that will impact the affordability of health insurance for consumers. Currently insurance companies and health plans set their own geographic rating areas. CDI's actuarial staff conducted extensive analysis of the different rating region structures that have been proposed. According to CDI's data the proposed six and 13 geographic regions would result in an estimated maximum premium increases of 23% and 25% respectively; the 19 proposed in AB 1461 would also result in an estimated 25% maximum premium increase. CDI proposes an 18 region plan that they argue would best minimize premium disruption in the marketplace by reducing it to a maximum of 8%. The California Association of Health Plans and the Association of California Life and Health Insurance Companies also oppose this bill unless it is amended. They both argue the guaranteed issue and community rating reforms in this bill should be linked to the same reforms in the ACA and that it would be a mistake for California to "go it alone" without the federal protections of the ACA. They are concerned that this bill is placing proposed federal rules into statute and that more flexibility is needed in case these rules are modified. Both associations claim that while the current 19 geographic rating regions are not perfect, keeping them would balance the need to avoid rate disruption to existing enrollees with creating regions that reflect the cost of care in local regional health care markets while maximizing subsidies. Analysis Prepared by : Teri Boughton / HEALTH / (916) 319-2097 FN: 0000018