BILL ANALYSIS                                                                                                                                                                                                    Ķ






                             SENATE COMMITTEE ON HEALTH
                          Senator Ed Hernandez, O.D., Chair

          BILL NO:       AB 1180
          AUTHOR:        Pan
          AMENDED:       June 20, 2013
          HEARING DATE:  July 3, 2013
          CONSULTANT:    Robinson-Taylor

          SUBJECT  :  Health care coverage: federally eligible defined  
          individuals: conversion or continuation of coverage.
           
          SUMMARY  :  Makes inoperative because of the federal Patient  
          Protection and Affordable Care Act several provisions in  
          existing law that implement the health insurance laws of the  
          federal Health Insurance Portability and Accountability Act of  
          1996 and additional provisions that provide former employees  
          rights to convert their group health insurance coverage to  
          individual market coverage without medical underwriting.  

          Existing law:
          1.Establishes the Department of Managed Healthcare (DMHC) to  
            regulate health plans under the Knox-Keene Health Care  
            Services Plan Act of 1975 in the Health and Safety Code;  
            California Department of Insurance (CDI) to regulate health  
            insurers under the Insurance Code; and, the Exchange to  
            compare and make available through selective contracting with  
            health plans and health insurance for individual and small  
            business purchasers as authorized under the Affordable Care  
            Act (ACA).  

          2.Defines a grandfathered health plan as having the same meaning  
            as that term is defined in the ACA.  Federal law defines a  
            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  
            permits new enrollment only for new employees or dependents).

          3.Prohibits a non-grandfathered health benefit plan for group or  
            individual coverage from imposing any pre-existing 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 (Monning), Chapter 852, Statutes of  
                                                         Continued---



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            2012).

          4.Establishes that premium rates for small employer health  
            benefit plan contracts can vary only by age, pursuant to age  
            bands, established by the federal Secretary of the Department  
            of Health and Human Services (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.

          5.Establishes a formula establishing the upper limit for premium  
            charges for health care plans and health insurance.   
            Authorizes the plan and insurer to adjust the premium based on  
            family size, as specified.

          6.Requires health care service plans (plans) and disability  
            (health) insurers, (collectively carriers), to continue to  
            provide the same coverage for 18 months, or 29 or 36 months as  
            specified, to individuals who leave their employment.   The  
            federal law that governs this is referred to as the  
            Consolidated Omnibus Budget Reconciliation Act (COBRA),  
            applies to employers who have more than 20 employees, and  
            requires the terminated employee to pay 102 percent of the  
            premium.  The state law that governs this is referred to as  
            Cal-COBRA, applies to employers that have two to 19 employees,  
            and requires the terminated employee to pay 110 percent of the  
            premium.

          7.Requires plans and insurers to offer continued guaranteed  
            eligibility and guaranteed renewal for health insurance to  
            individuals who have exhausted their COBRA or Cal-COBRA.  The  
            federal law is known as the Federal Health Insurance  
            Portability and Accountability Act of 1996 (HIPAA) and  
            provides national rules for all insurers operating in the  
            small employer marketplace.  HIPAA allows states to implement  
            an "acceptable alternative mechanism" to determine the rules  
            for HIPAA.  State law allows an eligible individual to pick  
            either a "conversion policy" or a "HIPAA policy."  

          8.Creates the Managed Risk Medical Insurance Board (MRMIB) which  
            administers the Major Risk Medical Insurance Program (MRMIP)  
            to provide major risk medical coverage to residents who are  
            unable to secure adequate private health coverage due to  




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            chronic illness or high-risk medical conditions.

          This bill:
          1.Makes several provisions in existing law inoperative on  
            January 1, 2014, related to:

                  a.        HIPAA and conversion policies comparative  
                    benefit matrices pursuant to AB 1401(Thomson), Chapter  
                    794, Statutes of 2002;
                  b.        Conversion to non-group coverage when the  
                    group policy has been terminated by the employer  
                    including requirements on carriers without individual  
                    market products to offer the most popular health  
                    maintenance organization (HMO) model plan or the most  
                    popular preferred provider organization (PPO) plan  
                    with the greatest number of enrolled individuals for  
                    its type of plan as of January 1 of the prior year, as  
                    reported to the California Department of Managed  
                    Health Care (DMHC) or the California Department of  
                    Insurance (CDI) under the same cost sharing terms and  
                    conditions (AB 1401); 
                  c.        Requirements that at least once a year a  
                    carrier permit an individual who has been covered for  
                    at least 18 months in an individual market plan to  
                    transfer to another plan or policy with equal or  
                    lesser benefits without medical underwriting pursuant  
                    to AB 2889 (Frommer), Chapter 826, Statutes of 2006;
                  d.        Requirements included in HIPAA conformity law  
                    pursuant to SB 265 (Speier), Chapter 810, Statutes of  
                    2000;
                  e.        Conversion policy for employees or members  
                    with insurance on an expense-incurred or service  
                    basis, other than for a specific disease or for  
                    accidental injuries only whose coverage has been  
                    terminated pursuant to SB 1846 (Russell), Chapter  
                    1186, Statues of 1982; 
                  f.        Except with regard to specified provisions, on  
                    and after January 1, 2014, that are applicable only to  
                    grandfathered individual health plan contracts  
                    previously issued to federally eligible defined  
                    individuals; and,
                  g.        Requirements regarding health care service  
                    plan coverage provided after the termination of the  
                    pilot program under MRMIP (AB 1401).





          AB 1180 | Page 4




          2.Repeals 1) above if the federal mandate on individuals to  
            purchase insurance is repealed or amended to no longer apply  
            to the individual market.

          3.Requires carriers to issue notices to individuals affected by  
            this bill informing them of changes in insurance laws  
            beginning January 1, 2014.  Requires uniform model notices to  
            be adopted by CDI and DMHC no later than September 1, 2013,  
            and exempts the departments from Administrative Procedure Act  
            for purposes of adopting the model notices.  Permits the  
            Directors of CDI and DMHC to modify these model notices  
            specifically for the purposes of clarity, readability and  
            accuracy.  Includes in this authority notices related to the  
            ending of the MRMIP pilot program and pursuant to provisions  
            under AB 792 (Bonilla) Chapter 851, Statutes of 2011.
          
          4.Provides authority for MRMIB to promulgate emergency  
            regulations regarding the shortening of the reconciliation  
            process upon the termination of MRMIP.

          5.Deletes the current formula and establishes a rate cap for  
            individuals enrolled in HIPAA grandfather products by limiting  
            the premium charged for coverage provided in 2014 to the rate  
            charged in 2013 multiplied by 1.09 and limits the rate of  
            growth thereafter, as specified.  Establishes a formula with  
            respect to the rate charged for coverage provided in 2015 and  
            each subsequent year.

          6.Deletes a provision which requires a health plan or disability  
            insurance policy to notify the former spouse of an employee  
            about the right to a conversion plan or policy, as specified,  
            and deletes obsolete inoperative dates (AB 254 (Montaņez),  
            Chapter 64, Statutes of 2004).

          7.Deletes a provision in existing law allowing carriers to elect  
            to establish a mechanism or method to share in the financing  
            of high risk individuals (AB 265 (Speir) Chapter 810, Statutes  
            of 2000).

           FISCAL EFFECT :  According to the Assembly Appropriations  
          Committee analysis, this bill will result in minor costs, less  
          than $100,000, to CDI and DMHC to develop the notice model.  The  
          analysis states that there will be negligible costs for the  
          provisions to make HIPAA and conversion laws inoperative and  
          subsequently operative if specified ACA changes occur.  If those  
          ACA changes occur, this bill's provisions along with many other  




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          new state laws will need to be reevaluated for potential cost  
          issues.

           PRIOR VOTES  :  
          Assembly Health:              18- 0
          Assembly Appropriations:      16- 1
          Assembly Floor:               69- 1
           



          COMMENTS  :  
           
          1.Author's statement.  Health plans and health insurance  
            companies believe that in a post ACA world where there is  
            guaranteed issue, renewability, community rating, prohibitions  
            on pre-existing condition exclusions, and many other  
            protections made available through the ACA, that certain HIPAA  
            and conversion requirements on carriers are no longer  
            necessary.  However, according to the author, these carriers  
            also requested, and in agreement, the Governor insisted that  
            certain federal ACA protections must be "tied back" to federal  
            law, so that if those ACA provisions are repealed, so too  
            would the major provisions of California's implementing ACA  
            legislation.  The author states that given these  
            circumstances, this bill is intended to make inoperative HIPAA  
            and conversion provisions until such time as those ACA  
            protections are repealed, if ever.  Additionally, some  
            individuals who are in grandfathered plans will be able to  
            stay in such plans until, and unless, they choose  
            non-grandfathered ACA compliant coverage.  For those  
            individuals in HIPAA PPO plans, the rating protections in  
            existing California law must be adjusted in the event MRMIP is  
            shut down, as is a possibility at some point in the future  
            because of the new ACA protections.   

          2.Background.  On March 23, 2010, the federal ACA (Public Law  
            (P.L.) 111-148), as amended by the Health Care and Education  
            Reconciliation Act of 2010 (P.L. 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 percent of household adjusted gross income),  




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            religion, incarceration, and immigration status.  Several  
            insurance market reforms are required, such as prohibitions  
            against health insurers imposing pre-existing 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  
            non-discrimination 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).

          Additionally, by 2014 either a state will establish separate  
            exchanges to offer individual and small-group coverage or the  
            federal government will establish one.  Exchanges will not be  
            insurers but will provide eligible individuals and small  
            businesses with access to private plans in a comparable way.   
            In 2014 some individuals with income below 400 percent of the  
            federal poverty level will qualify for credits toward their  
            premium costs and subsidies toward their cost-sharing for  
            insurance purchased through an exchange.  California has  
            established Covered California, as a state-based exchange that  
            is operating as an independent government entity with a  
            five-member Board of Directors.

          3.HIPAA.  HIPAA, provides for changes in the health insurance  
            market such as the guaranteed availability and renewability of  
            health insurance coverage for certain employees and  
            individuals, and limits the use of pre-existing condition  
            restrictions. HIPAA creates federal standards for insurers,  
            HMOs, and employer-provided health plans, including those that  
            self-insure.  It permits substantial state flexibility for  
            compliance with the requirements on insurers.  HIPAA also  
            includes tax provisions relating to health insurance.  It  
            permits a limited number of small businesses and self-employed  
            individuals to contribute to tax-advantaged medical savings  
            accounts established in conjunction with high-deductible  
            health insurance plans.  It increases the deduction for health  
            insurance that self-employed taxpayers may claim.  In  
            addition, it allows long-term care expenses to be treated like  
            deductible medical expenses and clarifies the tax treatment of  
            long-term care insurance. Finally, HIPAA includes  
            administrative simplification and privacy provisions  
            instructing the federal Secretary of HHS to issue standards  
            addressing the electronic transmission of health information  




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            and the privacy of personally identifiable medical  
            information.

          The basic intent of HIPAA's health insurance provisions is to  
            lower the possibility that people and small employers will  
            lose existing health plan coverage, and to make it easier for  
            individuals to switch plans or to purchase coverage on their  
            own if they lose employer-offered coverage.  The health  
            insurance reforms ensure that people who are moving from one  
            job to another or from employment to unemployment are not  
            denied health insurance because they have a pre-existing  
            medical condition (portability) and limit the waiting time  
            before a plan covers any pre-existing medical condition for  
            participants and beneficiaries in group health plans.  The  
            reforms were also intended to guarantee that individuals and  
            employers who choose to purchase coverage are able to find a  
            plan (guaranteed issue) and that individuals already covered,  
            as well as employers that offer coverage to their employees,  
            are able to renew their coverage (guaranteed renewal).   
            Finally, the health insurance provisions prohibit  
            discrimination on the basis of health status  
            (nondiscrimination) and require plans to offer special  
            enrollment periods.

          4.Tie back state law to the ACA.  Last year, AB 1461 (Monning)  
            and SB 961 (Hernandez) which would have implemented ACA  
            individual market reforms in California were vetoed by the  
            Governor because the tie back provision was not sufficient to  
            meet the Governor's concerns.  The Brown Administration  
            requested a broader tie-back to the ACA.  AB X1 2 (Pan) and SB  
            X1 2 (Hernandez) have been introduced which together implement  
            health insurance reforms in California in the individual  
            market, and include the following tie back provisions:

               a.     Makes inoperative 12 months after the repeal of  
                 federal guarantee issue and federal community rating  
                 provisions the following California small group  
                 provisions:
                     i.          Guarantee Issue;
                     ii.         Community rating; and,
                     iii.        Prohibition on eligibility rules based on  
                      health status and other factors.
                     
               b.     Makes operative prior California small group law  
                 (pre-ACA) related to guarantee issue and rating  




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                 requirements if federal guarantee issue and federal  
                 community rating are repealed.

               c.     Makes inoperative 12 months after the repeal of the  
                 federal individual mandate the following California  
                 individual market provisions:  

                     i.          Guarantee issue;
                     ii.         Community rating;
                     iii.        Prohibitions on pre-existing condition  
                      provisions; and,
                     iv.         Prohibitions on eligibility rules based  
                      on health status and other factors.


               d.     Makes operative 12 months after the repeal of the  
                 federal individual mandate the following California  
                 individual market provisions:

                     i.          Written policies on underwriting;
                     ii.         Rescission requirements; and,
                     iii.        Guarantee issue for children.

          5.Related legislation.  AB X1 2 and SB X1 2 conform California  
            law to the ACA as it relates to the ability to sell and  
            purchase individual health insurance by prohibiting  
            pre-existing condition exclusions, establishing modified  
            community rating, requiring the guaranteed issue and renewal  
            of health insurance, and ending the practice of carriers  
            conditioning health insurance on health status, medical  
            condition, claims experience, genetic information or other  
            factors.

          6.Prior legislation. 
               
               a.     SB 265 (Speier), Chapter 810, Statutes of 2000, put  
                 HIPAA in place in California which became law on January  
                 1, 2001, revises existing law to conform to the federal  
                 HIPAA, including requiring carriers to issue their two  
                 most popular health coverage products to federally  
                 eligible individuals, as defined.

               b.     AB 1401 (Thomson), Chapter 794, Statutes of 2002,  
                 provides 36 months of Cal-COBRA coverage to individuals  
                 with less than that length of coverage under COBRA or  
                 Cal-COBRA, and creates a four-year pilot program to  




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                 provide coverage to the medically uninsurable by  
                 implementing changes in the MRMIP and the private  
                 individual health insurance market.  
               
               c.     AB 2759 (Levine), Chapter 489, Statutes of 2004,  
                 preserves individual health care coverage to subscribers  
                 of health plans and policyholders of insurance plans that  
                 withdraw from a California service area.
               
               d.     AB 254 (Montanez), Chapter 64, Statutes of 2004,  
                 eliminates senior COBRA health insurance eligibility for  
                 individuals who would have been eligible on or after to  
                 January 1, 2005 (because HIPAA) offered more affordable  
                 options.
               
               e.     AB 2889 (Frommer), Chapter 826, Statutes of 2006,  
                 requires carriers to permit an individual who has been  
                 covered for at least 18 months under an individual  
                 contract or policy to transfer, without medical  
                 underwriting, to any other individual contract or policy,  
                 as specified.
               
               f.     AB 1083 (Monning), Chapter 852, Statutes of 2012,  
                 reforms California's small group health insurance laws to  
                 enact the ACA.  Eliminates pre-existing condition  
                 requirements and establishes premium rating factors based  
                 only on age, family size, and 19 geographic regions,  
                 except for grandfathered plans.  New guaranteed issue  
                 provisions and the rating provisions are tied to those  
                 provisions in the ACA.  Should guaranteed issue and  
                 rating factors be repealed in the ACA, California's  
                 existing small group guaranteed issue and rating law  
                 pre-ACA would become operative.
               
               g.     SB 961(Hernandez) and AB 1461(Monning) of 2012 would  
                 have reformed the individual market consistent with the  
                 ACA but both bills were vetoed.  The Governor's veto  
                 message states:
               
                 "I realize how important it is to align our  
                 individual health insurance market rules with the  
                 federal Patient Protection and Affordable Care Act.   
                 This bill got almost all the way there.

                 Unfortunately, the measure failed to adequately link  




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                 our state reforms to the federal law.  The  
                 Affordable Care Act requires insurers to provide  
                 health coverage to all individuals regardless of  
                 their health status.  This mandate on insurers is  
                 balanced by the mandate on individuals to obtain  
                 health coverage, with federal subsidies available to  
                 help lower-income people purchase it.

                 Without the strong foundation that federal law  
                 provides, a state-level mandate on insurers alone  
                 could encourage healthy people to wait until they  
                 got sick or injured before purchasing coverage. 

                 This would lead to skyrocketing premiums, making  
                 coverage more unaffordable.

                 I look forward to working with the Legislature to  
                 correct this problem and adopt the remaining  
                 essential provisions of this bill."

          7.Support.  California Association of Health Plans writes that  
            this bill allows for transition of individuals eligible for  
            guarantee issue coverage under HIPAA into the new guarantee  
            issue market under the ACA.  Further, this bill would require  
            health plans to provide HIPAA and conversion members with  
            appropriate and timely notice about their options in the new  
            guarantee issue market while simultaneously making inoperative  
                                 laws that are non-ACA compliant.  California Association of  
            Health Underwriters writes that this bill will provide an  
            urgently needed state and federal conformity that will avoid  
            the problem of health plans having to sell products out of  
            compliance with the ACA.

           SUPPORT AND OPPOSITION  :
          Support:  California Association of Health Plans 
                    California Association of Health Underwriters
                    California Coverage and Health Initiatives
                    Children's Defense Fund-California
                    Children Now
                    Children's Partnership
                    Health Access California
                    PICO California
                    United Ways of California

          Oppose:   None on file.





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