BILL ANALYSIS                                                                                                                                                                                                    Ó






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

          BILL NO:       SB 353
          AUTHOR:        Lieu
          INTRODUCED:    February 20, 2013
          HEARING DATE:  April 10, 2013
          CONSULTANT:    Trueworthy

           SUBJECT  :  Health care coverage: language assistance.
           
          SUMMARY  :  Requires health plans and health insurers  
          (collectively referred to as carriers) that advertise or market  
          in a language other than English, and that language does not  
          meet the minimum thresholds established in current law, to  
          translate specified documents into that language. Prohibits an  
          insurer from publishing or distributing, or allowing to be  
          published or distributed on its behalf, any advertisement unless  
          specified conditions are met.

          Existing law:
          1.Provides for the regulation of health insurers by the  
            California Department of Insurance (CDI) under the Insurance  
            Code and provides for the regulation of health plans by the  
            Department of Managed Health Care (DMHC) pursuant to the  
            Knox-Keene Health Care Service Plan Act of 1975 (Knox-Keene  
            Act).  

          2.Establishes the federal Patient Protection Affordability Care  
            Act (ACA), which imposes various requirements, some of which  
            take effect on January 1, 2014, on states, carriers,  
            employers, and individuals regarding health care coverage.  
            Requires every individual to be covered under minimum  
            essential coverage, as specified, and requires every health  
            insurance issuer offering coverage in the individual or small  
            group markets to ensure coverage includes specified essential  
            health benefits.

          3.Establishes the California Health Benefits Exchange (Covered  
            California) to facilitate the purchase of qualified health  
            plans through Covered California by qualified individuals and  
            qualified small employers by January 1, 2014.

          4.Prohibits a health plan from publishing or distributing an  
            advertisement unless a copy thereof has first been filed with  
            the Director of the DMHC at least 30 days prior to that use  
                                                         Continued---



          SB 353 | Page 2




            and the Director has not found the advertisement to be untrue,  
            misleading, deceptive, or in violation of the Knox-Keene Act  
            within those 30 days.

          5.Authorizes the Director of DMHC to require a plan to publish a  
            correction or retraction of an untrue, misleading, or  
            deceptive statement contained in the advertisement and to  
            prohibit the health plan from publishing the advertisement or  
            a material revision without filing a copy with the Director if  
            an advertisement fails to comply with the Knox-Keene Act.

          6.Authorizes the Director of DMHC to exempt a health plan or an  
            advertisement from the requirements described above.

          7.Prohibits a health plan, solicitor, solicitor firm, or  
            representative from using any advertising or solicitation, or  
            making or permitting the use of any verbal statement, that is  
            untrue or misleading or any form of evidence of coverage that  
            is deceptive. 

          8.Permits, under the Knox-Keene Act, the Director of DMHC to  
            require that solicitors, solicitor firms and principal persons  
            engaged in the supervision of solicitation for plans of  
            solicitor firms to meet such reasonable and appropriate  
            standards with respect to training, experience, and other  
            qualifications as the Director finds necessary and  
            appropriate.

          9.Defines, under the Insurance Code, unfair methods of  
            competition and unfair and deceptive acts or practices in the  
            business of insurance. Makes any person who engages in any  
            unfair method of competition or any unfair or deceptive act or  
            practice liable to the state for a civil penalty to be fixed  
            by the Insurance Commissioner, not to exceed $5,000 for each  
            act or, if the act or practice was willful, a civil penalty  
            not to exceed $10,000 for each act. 

          10.Defines unfair methods of competition and unfair and  
            deceptive acts in in the business of insurance as making or  
            disseminating, or causing to be made or disseminated before  
            the publication any statement containing any assertion,  
            representation, or statement which is untrue, deceptive, or  
            misleading, and which is known, or should be known, to be  
            untrue, deceptive, or misleading.

          11.Requires each insurer to the extent required by the  




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            commissioner of CDI, to file with copies of all printed  
            advertising the insurer proposes to disseminate in the state.

          12.Requires DMHC and CDI to adopt regulations establishing  
            standards and requirements to provide enrollees and insureds  
            with appropriate access to language assistance in obtaining  
            health care services.  

          13.Requires carriers to translate specified vital documents into  
            a language when a certain proportion of its enrollees or  
            insureds indicate a preference for written materials in that  
            language. Requires carriers to complete an assessment of the  
            linguistic needs of its enrollee population and based on the  
            size and language needs assessment, determines its "threshold"  
            languages.  

          14.Requires carriers to report to the respective departments  
            their internal policies and procedures related to cultural  
            appropriateness.
           
           This bill:
          1.Requires a carrier that advertises or markets in a language  
            other than English, and which do not meet the minimum  
            threshold languages, to translate into that language all of  
            the following documents:
             a)   Welcome letters or notices of initial coverage, if  
               provided;
             b)   Applications to participate in a program or activity or  
               to receive a benefit or service;
             c)   Letters containing important information regarding  
               eligibility or participation criteria;
             d)   Notices advising limited-English-proficient (LEP)  
               persons of the availability of no-cost translation and  
               interpretation services;
             e)   Notices pertaining to the right and instructions on how  
               to file a grievance; and
             f)   Uniform summaries of benefits of coverage.

          1. Requires a carrier to use a trained and qualified translator  
            for all written translations of marketing and advertising  
            materials relating to health care service plan products, and  
            for all the documents listed in 1) above.

          2.Prohibits an insurer from publishing or distributing, or  
            allowing to be published or distributed on its behalf, any  




          SB 353 | Page 4




            advertisement unless both of the following conditions are met  
            at least 30 days prior or any shorter period as CDI allows by  
            regulation:
             a)   A true copy of the advertisement has first been filed  
               with CDI; and
             b)   CDI has not found the advertisement, wholly or in part,  
               to be untrue, misleading, deceptive, or otherwise not in  
               compliance.

          1.Allows an insurer that has been continuously licensed for the  
            preceding 18 months to publish or distribute, or allow to be  
            published or distributed on its behalf, an advertisement  
            without having filed it with CDI for prior approval, if the  
            insurer and the material comply with each of the following  
            conditions:
             a)   The advertisement or a material has not been previously  
               disapproved by CDI and the insurer reasonably believes that  
               the advertisement does not violate any rules; and
             b)   The insurer files a true copy of each new or materially  
               revised advertisement with CDI no later than 10 business  
               days after publication or distribution of the  
               advertisement. 

          1.Authorizes CDI to require the insurer to publish an approved  
            correction or retraction of any untrue, misleading, or  
            deceptive statement contained in the advertising.  

          2.Authorizes a health insurer, insurance agent, or other person  
            to file a written request for a hearing with CDI within 30  
            days after receipt of any notice or order.

          3.Authorizes CDI to develop regulations to classify plans and  
            advertisements as exempt from 3) and 4) described above.  
            Prohibits CDI from exempting new products or products offered  
            by insurers with a record within the past five years of  
            violations of these requirements.

           FISCAL EFFECT  :  This bill has not been analyzed by a fiscal  
          committee

           COMMENTS  :  
           1.Author's statement.  The ACA has the potential to cover four to  
            five million individuals who currently lack access to health care  
            coverage.  In Covered California, over two million people will be  
            eligible for subsidies to help them purchase health insurance.  
            Consumer trust in the establishment and operation of Covered  




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            California is critical to its success. The opportunities for  
            confusion, misinformation and outright deception about the  
            individual mandate, employer requirements, who is eligible for  
            what type of coverage, and other provisions of the ACA will be  
            considerable. In particular, low-income consumers, communities of  
            color and LEP individuals as well as the small business owners in  
            those communities are often the most preyed upon. There are some  
            existing protections in the Knox-Keene Act and some in the  
            Insurance Code. This legislation builds on those protections to  
            ensure consumers trust in the expansion of this program and are  
            protected against bad actors or unscrupulous individuals.
          
          2.Federal health care reform.  On March 23, 2010, President  
            Obama signed the ACA
            (Public Law 111-148), as amended by the Health Care and  
            Education Reconciliation Act of 2010 (Public Law 111-152).  
            Among 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 eight percent of household adjusted gross  
            income), religion, incarceration, and immigration status.  
            Several insurance market reforms are required, such as  
            prohibitions against carriers imposing lifetime benefit limits  
            and 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 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).  

            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 (FPL) will qualify for credits toward  
            their premium costs and for subsidies toward their  
            cost-sharing. California's exchange, Covered California  




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            operates as an independent government entity with a  
            five-member Board of Directors. The ACA also expands the  
            Medicaid program to cover adults without children and expands  
            the income requirements to 138 percent of FPL based on  
            modified adjusted gross income rules.
            
          3.Language Assistance.  SB 853 (Escutia), Chapter 713, Statutes  
            of 2003, required DMHC to develop regulations that require  
            health plans to provide language assistance services,  
            including certain translation and interpretation services, to  
            LEP enrollees. The language assistance regulations require  
            health plans to conduct periodic enrollee assessments to  
            evaluate the linguistic needs of the enrollee population,  
            maintain policies and procedures to ensure that LEP enrollees  
            are able to access language assistance services, instruct  
            staff on the use of the language assistance services, and  
            monitor the plan's operations and services to ensure  
            compliance with the language assistance regulations.
            
            Plans must provide translation services for their identified  
            threshold languages as determined by the periodic enrollee  
            assessment and translate specified documents including:  
            applications; consent forms; letters containing important  
            information regarding eligibility and participation criteria;  
            notices pertaining to the denial, reduction, modification, or  
            termination of services and benefits, the right to file a  
            grievance or appeal; notices advising LEP enrollees of the  
            availability of free language assistance and other outreach  
            materials that are provided to enrollees; explanation of  
            benefits or similar claim processing information that is sent  
            to an enrollee if the document requires a response from the  
            enrollee; and portions of plan disclosure forms containing  
            information regarding the benefits, services, and terms of the  
            plan contract.  

            Health plans are required to place a notice of the  
            availability of language assistance services on all English  
            versions of vital documents, all enrollment materials, all  
            correspondence from the plan confirming a new or renewed  
            enrollment, brochures, newsletters, outreach and marketing  
            materials, and other materials routinely disseminated to  
            enrollees. Interpretation services are also required to be  
            provided to enrollees at all plan points of contact where the  
            enrollee might have need for such services. Health plans are  
            required to provide interpretation services for any language  
            requested by an enrollee, irrespective of whether the language  




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            is identified as one of the plan's threshold languages.

          4.Prior legislation.  SB 1313 (Lieu) would have made several  
            changes to existing marketing 
            and advertising rules for health plans, insurers, solicitors,  
            brokers, and agents.  SB 1313 failed passage in the Senate  
            Appropriations Committee.
            
            AB 1761 (John A. Pérez), Chapter 876, Statutes of 2012, gave  
            DMHC and CDI enforcement authority over licensees who hold  
            themselves out as representing or providing services on behalf  
            of Covered California without a valid agreement. Makes holding  
            oneself out as representing, constituting, or otherwise  
            providing services on behalf of Covered California without a  
            valid agreement unfair competition.

            SB 900 (Alquist), Chapter 659, and AB 1602 (John A. Pérez),  
            Chapter 655, Statutes of 2010, established Covered California.

            SB 1273 (Scott), Chapter 730, Statutes of 2004, prohibits an  
            insurer, agent or  broker from making or using a statement  
            that is known, or should have been known, to be a  
            misrepresentation of the terms, benefits, or dividends of an  
            insurance policy, and prohibits a person from making a  
            statement that is known, or should have been known, to be a  
            misrepresentation for the purpose of inducing another person  
            or policyholder to take certain actions, and increases the  
            maximum penalty for such misrepresentations to up to one year  
            and/or a fine of up to $25,000, and provides that when the  
            loss to the victim exceeds $10,000, the maximum fine is three  
            times the amount of that loss. 

            SB 853 (Escutia), Chapter 713, Statutes of 2003, required DMHC  
            to adopt, not later than January 1, 2006, regulations  
            establishing standards and requirements to provide health care  
            service plan enrollees with access to language assistance in  
            obtaining health care services.
            
          5.Support.  Health Access writes that the Knox-Keene Act  
            provides numerous protections for consumers enrolled in  
            managed care plans regulated by DMHC.  Health Access argues SB  
            353 extends prior approval of marketing materials for health  
            coverage to the Insurance Code.  SB 353 is needed to counter  
            the flood of misinformation about federal health reform, its  
            benefits and requirements.  The California Immigrant Policy  




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            Center writes in support that SB 353 would strengthen consumer  
            protections for new health care enrollees and protect them  
            against potential fraudulent or deceptive marketing practices.  
             The California Pan-Ethnic Health Network (CPEHN) writes that  
            SB 353 seeks to build consumers' trust in the system by  
            strengthening consumer protections and closing gaps in the  
            current law. CPEHN writes that SB 353 protects LEP enrollees  
            by requiring critical enrollment information be translated  
            when carriers market in non-English languages and it aligns  
            the responsibilities of CDI with DMHC to review and approve  
            marketing materials. 

          6.Opposition.  The California Association of Health Plans (CAHP)  
            writes in opposition to SB 353 that the bill will increase  
            costs and administrative burdens on health plans trying to  
            reach new communities and inform them about coverage options  
            available through the ACA.  CAHP writes that health plans  
            already routinely provide telephonic interpreter services and  
            will translate documents either verbally or in writing upon  
            request for those speaking a diverse range of languages. CAHP  
            argues that requiring health plans to translate many documents  
            into "nonthreshold languages even if it publishes just one  
            advertisement or notice will be costly and could have the  
            unintended consequence of lessening plan outreach. 
          
          7.Authors Amendments.
             a)   Translation requirements.  SB 353 only requires a health  
               plan or insurer that markets a product in a language other  
               than English or a threshold language to comply with the  
               requirements of this bill. Agents, brokers, or solicitors,  
               who often market on behalf of a carrier, would not need to  
               comply with these provisions. The author is proposing the  
               following amendment: Page 3, Line 4 after "markets" insert:   
               ,or allows any other person or business to market or  
               advertise on its behalf,
                
             b)   Marketing approval requirements.  Current law prohibits  
               any statement containing any assertion, representation, or  
               statement with respect to the business of insurance or with  
               respect to any person in the conduct of his or her  
               insurance business, which is untrue, deceptive, or  
               misleading, and which is known, or which by the exercise of  
               reasonable care should be known, to be untrue, deceptive,  
               or misleading. SB 353 would require marketing materials to  
               be filed with CDI at least 30 days prior to publishing and  
               the director has not found the advertisement to be untrue,  




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               misleading or deceptive. Concern has been raised that this  
               could require prior approval. The author is proposing an  
               amendment to clarify and conform to existing law in  
               Knox-Keene. On Page 4, Line 8 after "deficiencies" insert  
               the following:  "within the 30 days or any shorter time as  
               the director by rule or order may allow."  
               
             c)   Documents.  SB 353 requires specified documents to be  
               translated into a language a carrier advertises or markets  
               in, if that language does not meet the minimum threshold  
               languages established in current law. The list of documents  
               appears to be duplicative and adds language related to  
               threshold languages already required in existing law. The  
               author is proposing the following amendments: 
                  I.        Page 3, Lines 9-10:   (2) Applications  for  
                    enrollment and any information pertinent to  
                    eligibility or participation  .  to participate in a  
                    program or activity or to receive a benefit or  
                    service.
                   II.       Page3, Strike Lines 11 and 12.   
                  III.      Page 3, Strike Lines 21 -26.

                    
           SUPPORT AND OPPOSITION  :
          Support:  California Pan-Ethnic Health Network (sponsor)
                    California Immigrant Policy Center (sponsor)
                    Health Access California (co-sponsor)
                    American Cancer Society Cancer Action Network
                    American Federation of State, County and Municipal  
                    Employees, AFL-CIO
                    Asian Americans for Civil Rights and Equality
                    Asian Pacific American Legal Center
                    Black Women for Wellness
                    California Black Health Network
          `         California Rural Legal Assistance Foundation
                    Centro Binacional para el Desarrollo Indigena  
                    Oaxaqueno
                    Consumers Union
                    Earth Mama Healing, Inc.
                    Greenlining Institute
                    Guam Communications Network
                    Korean Community Center of the East Bay
                    Pacific Islander Cancer Survivors Network
                    Street Level Health Project





          SB 353 | Page 10




          Oppose:   Association of California Life and Health Insurance  
                    Companies
                    California Association of Health Plans


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