BILL ANALYSIS Ó SENATE COMMITTEE ON HEALTH Senator Ed Hernandez, O.D., Chair BILL NO: SB 1446 AUTHOR: DeSaulnier AMENDED: April 28, 2014 HEARING DATE: May 7, 2014 CONSULTANT: Boughton SUBJECT : Health care coverage: small employer market. SUMMARY : Authorizes a small employer health plan or health benefit plan (another name for health insurance policy) in effect on October 1, 2013, and renewed by December 31, 2013, that does not qualify as a grandfathered health plan or health benefit plan, to avoid compliance with specified provisions of the Affordable Care Act (ACA) and related state law, and, be renewed until October 2016, at which time compliance with the ACA and state law is required. Contains an urgency clause that will make this bill effective upon enactment. Existing law: 1.Regulates health plans through the Department of Managed Health Care (DMHC) and health insurance policies through the California Department of Insurance (CDI). Health plans include Health Maintenance Organizations (HMOs) and some Preferred Provider Organizations (PPOs). Health insurance policies include PPOs, but not HMOs. 2.Requires on or after October 1, 2013 a non-grandfathered plan or insurer to fairly and affirmatively offer, market, and sell all of the plan's small employer health plan contracts and insurance policies for plan years on or after January 1, 2014 to all small employers in each service area in which the plan provides or arranges for health care services. This is referred to as "guarantee issue." 3.Prohibits a plan or insurer from rejecting an application from a small employer for a small employer health plan contract or insurance policy if certain conditions are met. 4.Requires health plans and health insurers to consider as a single risk pool for rating purposes the claims experience of all insureds and enrollees in all non-grandfathered health benefit plans in this state, whether offered as a health plan contract or health insurance policy, including those insureds Continued--- SB 1446 | Page 2 and enrollees who enroll in individual coverage through Covered California and enrollees and insureds outside of Covered California. This requirement applies separately for individual market products and small group products. 5.Requires the premium rate for a small employer health plan or insurance policy issued, amended, or renewed after January 1, 2014 to vary only by age, not more than three to one for like individuals of different ages, as specified, geographic region, as specified, and whether the contract or policy covers an individual or family, as specified. 6.Requires individual and small group health plans and insurance policies issued, amended, or renewed, on or after January 1, 2014, to cover at a minimum, essential health benefits (EHBs) as specified in state and federal law. 7.Requires, on or after January 1, 2015, for non-grandfathered health plan contracts or health insurance policies in the individual and small group markets to provide for a limit on annual out-of-pocket (OOP) expenses for all covered benefits that meet the definition of EHBs, including out-of-network emergency care, as specified. 8.Requires the maximum OOP limit to apply to any copayment, coinsurance, deductible and any other form of cost sharing for all covered benefits that meet the definition of EHBs. 9.Requires the limit, described in 8) above, to result in a total maximum OOP limit for all EHBs equal to the dollar amounts in effect under the Internal Revenue Service, as specified, as adjusted by the ACA, as specified. 10.Prohibits small employer health plan contracts and insurance policies offered, sold, or renewed on or after January 1, 2014 from containing deductibles that exceed $2,000 for a single individual and $4,000 for any other plan contract or policy. 11.Defines levels of coverage for the non-grandfathered small group market as Bronze, Silver, Gold, Platinum, as specified. 12.Establishes premium rate rules for small employer health plan and insurance contracts including, that effective July 1, 1996, the employee risk adjustment factor may not be more than 110 percent or less than 90 percent, and requires plans and insurers to apply standard employee risk rates consistently SB 1446 | Page 3 with respect to all small employers. This bill: 1.Authorizes a small employer health plan or health benefit plan in effect on October 1, 2013, including those renewed by December 31, 2013, and still in effect as of the effective date of this bill, that does not qualify as a grandfathered health plan or health benefit plan, to be renewed until October 2016, and continue to be in force until after September 30, 2017, subject to applicable federal law, and any other requirements imposed by this bill. 2.Authorizes a small employer health plan contract or health benefit plan described in 1) above, to continue to be in force after September 30, 2017, if the contract or plan is amended to comply with all of the provisions, listed in 4) below, by October 1, 2017, and if the contract or plan complies with all other applicable provisions of law. 3.Requires, prior to renewing a small employer health plan contract or health benefit plan pursuant to 1) above, the health plan or health benefit plan to provide notice to the group contract holder regarding the option to renew coverage using a specified notice issued by the United States Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS) on March 5, 2014. 4.Exempts a small employer health plan contract or health benefit plan, described in 1) above, from the following provisions in existing California law: a. Requirements to guarantee issue; b. Prohibitions against rejecting applications; c. Requirements for a single risk pool; d. Rating limitations associated with age, family size, and geographic regions; e. Requirements to provide EHBs; f. Maximum limitations on OOP expenses and deductibles; and, g. Definitions on levels of coverage and actuarial value. 5.Requires a small employer health plan contractor health benefit plan, pursuant to 1) above, to be subject to risk adjustment factors of not more than 110 percent and not less SB 1446 | Page 4 than 90 percent and consistent employee risk rates with respect to all small employers. Requires the small employer health plan contract or health benefit plan to continue to be subject to all other requirements on non-grandfathered small employer plans and the Knox-Keene Act or laws applying to life and disability insurance. 6.Requires, no later than October 1, 2017, a small employer health plan contract or health benefit plan to be amended to comply with the provisions, described in 4) above. 7.Defines a small employer health plan contract as a group health care service plan contract other than a specialized health plan, issued to a small employer, as defined. 8.Defines a health benefit plan as a policy of health insurance, as defined, for the covered eligible employees of a small employer and their dependents. The term does not include coverage of Medicare services pursuant to contracts with the United States government or coverage that provides excepted benefits, as specified. 9.Contains an urgency clause that will make this bill effective upon enactment. FISCAL EFFECT : This bill is keyed non-fiscal. COMMENTS : 1.Author's statement. According to the author, state law is not consistent with the ACA transition policy announced by President Obama, which can lead to consumer confusion and policyholders asking why they aren't allowed to keep their existing health insurance coverage that their employees are happy with when the President announced that they may do so. A significant percentage of small business owners will choose to move to ACA compliant products by the end of 2014, but this bill allows those who wish to avail themselves of President Obama's transition policy to do so. 2.ACA, Risk Pools and California Implementation. The ACA, enacted on March 23, 2010 and amended on March 30, 2010 represents a major expansion of U.S. health care coverage through an expansion and simplification of the Medicaid program and the adoption of major reforms of the health insurance market. Most transformational are changes to the small group and individual insurance markets, such as mandating guaranteed issuance of coverage, eliminating pre- SB 1446 | Page 5 existing condition exclusions, limiting factors upon which premium rates can be developed, and authorizing the creation of health benefit exchanges either at the state or federal level. Beginning in 2014, individuals are 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. Large businesses (those with 50 or more full-time workers) that do not provide adequate health insurance are required to pay an assessment if their employees receive premium tax credits in Exchanges to buy their own insurance. Small businesses with generally fewer than 100 employees can shop in an exchange for qualified health benefit plans (QHPs). Exchanges offer a choice of plans that meet certain benefits and cost standards. For the self-employed, the cost of the health insurance may be deductible from federal taxes. Tax credits are available for individual health insurance purchased through an exchange. These tax credits are available to individuals with income between 100 percent and 400 percent of the federal poverty level and who are not eligible for other affordable coverage. To stabilize health insurance rates during this market transition and to spread health risk across health plans and insurers, the ACA established programs of risk adjustment, reinsurance and risk corridors. Before the ACA, health plans and insurers often maintained several separate risk pools within their individual and small group market business, often as a way to segment risk and further underwrite premiums. Beginning in 2014, health plans and insurers are no longer able to deny coverage based on applicants' health status and are limited in the types of rating factors they can apply in setting premiums in the individual and small group markets. Without a single risk pool rule, these prohibitions against traditional underwriting could incentivize health plans and insurers to find ways to segment the market into separate risk pools and charge differential premiums based on segmented risk, a de facto mechanism for underwriting. As a result, the ACA requires a health plan or insurer to consider all of its enrollees in all plans and policies (other than grandfathered plans or policies) offered by the health plan or issuer to be members of a single risk pool in the individual market or SB 1446 | Page 6 small group market, respectively, which prevents plans and insurers from creating separate pools in order to segment high risk and low risk enrollees. While risk adjustment will address some risk segmentation, the single risk pool requirement provides another layer of protection against adverse selection among plans and protects consumers by requiring health plans and insurers to consider the risk of all enrollees when developing and pricing unique plans. Pursuant to the ACA, 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. California has also enacted legislation to incorporate most of the federal insurance market reforms into state law, including a requirement that in both the individual and small group markets, coverage issued, amended, or renewed on or after January 1, 2014, must be compliant with ACA reforms, such as guaranteed issue, premium limits, and use of a single risk pool for determining rates. Prior to the ACA, California adopted AB 1672 (Margolin and Hansen), Chapter 1128, Statutes of 1992, which enacted guaranteed issue and renewability as well as rating and pre-existing condition limitations affecting small group health insurance. 3.Plan Cancellations Individual Market. On May 7, 2013, Covered California adopted model contract requirements that require participating plans, also known as QHPs, to terminate all of their non--ACA compliant policies effective December 31, 2013. In compliance with this requirement, QHPs began sending out cancellation letters to their enrollees and insureds in late September. However, the Commissioner of CDI did not approve the termination of policies of two companies under CDI's jurisdiction, indicating that the cancellations were not in compliance with notice requirements of existing law. For people insured by these companies, cancellation periods were extended to allow for adequate notice. As such, these policy cancellations were permitted in February and March of 2014. In addition, two carriers chose to withdraw from the market. These QHP contract requirements are specific to individual market health plan contracts and insurance policies, not small group market contracts and policies. On November 14, 2013, President Obama announced and CMS issued a policy giving insurers the option to offer renewals to SB 1446 | Page 7 people in non--ACA compliant plans who were enrolled on October 1, 2013. However, implementation was deferred to states and is subject to state law. See below for more information about the federal transitional policy. In response to the November 2013 federal policy option to allow for renewals of insurance coverage, Covered California's governing board chose to maintain its policy to require the cancellations for individual market QHPs (with the exception of the two CDI regulated carriers) for a number of reasons, including that for the vast majority of Californians, ACA coverage is better coverage. A special consumer assistance unit was established to help consumers through this transition. 4.Federal Transitional Policy. On November 14, 2013, CMS issued a letter to the State Insurance Commissioners outlining a transitional policy for non-grandfathered coverage in the small group and individual health insurance markets. CMS announced in its November 14, 2013 letter that, if permitted by applicable state authorities, health insurance issuers may choose to continue certain coverage that would otherwise be cancelled, and affected individuals and small businesses may choose to re-enroll in such coverage. CMS further states that, under the transitional policy, non-grandfathered health insurance coverage in the individual or small group market that is renewed for a policy year starting between January 1, 2014 and October 1, 2014 will not be considered out of compliance with certain ACA reforms if certain specific conditions are met. The ACA reforms are: a. Section 2701 (relating to fair health insurance premiums); b. Section 2702 (relating to guaranteed availability of coverage); c. Section 2703 (relating to guaranteed renewability of coverage); d. Section 2704 (relating to the prohibition of pre-existing condition exclusions or other discrimination based on health status), with respect to adults, except with respect to group coverage; SB 1446 | Page 8 e. Section 2705 (relating to the prohibition of discrimination against individual participants and beneficiaries based on health status), except with respect to group coverage; f. Section 2706 (relating to non-discrimination in health care); g. Section 2707 (relating to comprehensive health insurance coverage); h. Section 2709 (relating to coverage for individuals participating in approved clinical trials); and, i. Additionally, policies subject to the transitional relief are not considered to be out of compliance with section 1312(c) of the ACA (relating to the single risk pool requirement). On March 5, 2014, CMS issued another letter extending the transitional policy for two years - to policy years beginning on or before October 1, 2016, in the small group and individual market. CMS indicates that it will consider the impact of the two-year extension of the transitional policy in assessing whether an additional one-year extension is appropriate. CMS indicates this policy also applies to large businesses that currently purchase insurance in the large group market but that, as of January 1, 2016, will be redefined by the ACA as small businesses purchasing insurance in the small group market. States that did not adopt the November 14, 2013 transitional policy, and that regulate issuers whose 2013 policies renew anytime between March 5, 2014 and December 31, 2014, including any policies that were renewed early in late 2013, may choose to implement the transitional policy for any remaining portion of the 2014 policy year (i.e., this policy could apply to "early renewals" from late 2013). Moreover, states can elect to extend the transitional policy for a shorter period than through October 1, 2016 (but may not extend it to policy years beginning after October 1, 2016). Furthermore, states may choose to adopt both the November 14, 2013 transitional policy, as well as the extended transitional policy through October 1, 2016, or adopt one but not the other, in the following manner: a. For both the individual and the small group markets; SB 1446 | Page 9 b. For the individual market only; or c. For the small group market only. 1.Key Issues. According to Covered California, there are 250,000 employers who now offer health coverage in today's small group market. These numbers include employers with grandfathered plans that were in place when the ACA was enacted. These employer-sponsored plans cover about 2.2 million individuals. Based on information provided by Covered California based on aggregated information from multiple carriers, an estimate of how the provisions of the ACA affect the small group market rates, in general, is below. Twenty percent of the employers in the total small group market (employing 15% of the employees in the total small group market) will see a reduction in rates on average of 10% upon transitioning to ACA compliant coverage. Conversely, 20% of the small group businesses (employing 30% of the employees in the small group market) will see an average rate increase of 35-40%. Rate Impact: Employers & Employees in Existing Small Group Market -------------------------------------------------------------- |Statewide |Statewide |Range of Rate |Average | |Percentage |Percentage of |Increases/Decre|Increase/Decrea| |of Small |Affected Small |ases (includes |se | |Group |Group Employees |4-5 percent | | |Employers | |medical trend | | | | |not due to | | | | |ACA) | | |-------------+----------------+---------------+---------------| |20 percent |30 percent |30-100 percent |35-40 percent | |-------------+----------------+---------------+---------------| |60 percent |55 percent |0-30 percent |14 percent | |-------------+----------------+---------------+---------------| |20 percent |15 percent |-40-0 percent |-10 percent | -------------------------------------------------------------- According to Covered California, approximately one-third of the overall California small group market renews in the first half of the year, and approximately 40 to 50 percent of the market renews in November and December. Employers receive renewal rate information approximately 75 days prior to their effective date. Therefore notices for November renewals would start going out in August. SB 1446 | Page 10 It is important to keep in mind that some percentage of small employers will already have converted to ACA compliant coverage prior to enactment should this bill be enacted. According to Covered California one-third of the market will have renewed by the end of June. Additionally, those in grandfathered plans are already permitted to renew their non- ACA compliant coverage. As such it is difficult to estimate how many employers and employees would be affected by this bill. The individual insurance carriers are in the best position to know those numbers. 2.Small Business Health Options. The Small Business Health Options Program (SHOP) facilitates the purchase of health insurance for small-business owners. SHOP is a second marketplace run by Covered California, separate from the one for individuals. In 2015, Covered California will expand this program to begin offering health plans to employers with one to 100 employees, for coverage beginning January 1, 2016. Plans participating in the SHOP are: Blue Shield of California, Chinese Community Health Plan, Health Net, Kaiser Permanente, Sharp Health Plan and Western Health Advantage. These plans are sold through licensed insurance agents trained and certified by Covered California. SHOP is administered for Covered California by Irvine-based Pinnacle Claims Management, Inc., which was awarded the contract in April 2013. The only way for small-business owners to access tax credits available through the ACA is to purchase insurance through Covered California's SHOP. The first phase of tax credits under the law goes through tax year 2013 and provides businesses with fewer than 25 full-time-equivalent employees with a tax credit, provided the employees make less than $50,000 a year. During this first phase, qualifying employers can receive a tax credit of up to 35 percent of their contribution toward their employees' premium (25 percent for non-profits). The maximum tax credit increases to 50 percent (35 percent for non-profits) in 2014 and is available for a total of two consecutive years. Generally, businesses with 10 or fewer full-time-equivalent employees and wages averaging $25,000 or less a year will qualify for the maximum credits. To qualify for tax credits, employers must also pay at least 50 percent of employee-only premium costs. Through March 31, 2014, 1,156 small businesses (representing about 4,900 employees and their dependents) have enrolled for coverage. Enrollment in SHOP is available year round. SB 1446 | Page 11 3.Related legislation. AB 1507 (Logue) would authorize health plans and insurers to renew individual and small group health benefit plans in effect October 1, 2013, as specified, and requires such coverage to be treated as "grandfathered" coverage, exempt from California implementing provisions of the ACA explicitly identified in this bill. AB 1507 was never heard in Assembly Health Committee. SB 959 (Hernandez) would prohibit a change in premium rate or coverage for an individual plan contract or policy unless the plan or insurer delivers a written notice of the change at least 15 days prior to the start of the annual enrollment period applicable to the contract or 60 days prior to the effective date of renewal, whichever occurs earlier in the calendar year. Makes several corrections and clarifications to provisions of law governing individual and small group health insurance, including clarifying that health plans and insurers have a single risk pool for enrollees and insureds. SB 959 was placed on the Senate Appropriations suspense file. 4.Prior legislation. SB 639 (Hernandez), Chapter 316, Statutes of 2013, codifies provisions of the ACA relating to out-of-pocket maximums on cost-sharing, health plan and insurer actuarial value coverage levels and catastrophic coverage requirements, and requirements on health insurers for coverage of out-of-network emergency services. Applies out-of-pocket limits to specialized products that offer essential health benefits and permits carriers in the small group market to establish an index rate no more frequently than each calendar quarter. AB 1180 (Pan), Chapter 441, Statutes of 2013, makes inoperative 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. Established notification requirements informing individuals affected by AB 1180 of health insurance available in 2014. SB X1 2 (Hernandez), Chapter 2, Statutes of 2013-14 First Extraordinary Session, and AB X1 2 (Pan), Chapter 1, Statutes of 2013-14 First Extraordinary Session, conform California law to the ACA as it relates to the ability to sell and purchase SB 1446 | Page 12 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. The bills also update the small group market laws for health plans to be consistent with final federal regulations. AB 1083 (Monning), Chapter 852, Statutes of 2012, amended California's small group health insurance laws to enact the relevant ACA provisions, such as eliminating pre-existing condition requirements and establishing premium rating factors based only on age, family size, and geographic regions. AB 1083 permits a waiting period of no longer than 60 days; requires an affiliation period under a health plan contract to run concurrently with any waiting period under that contract, not to exceed 60 days; and, allows a waiting period for plan years on or after January 1, 2014 to be applied as a condition of employment if applied equally to all full-time employees, consistent with ACA and any rules, regulations, or guidance issued consistent with that law. SB 951 (Hernandez), Chapter 866, Statutes of 2012 and AB 1453 (Monning), Chapter 854, Statutes of 2012 establishes California's EHBs benchmark requirements. 5.Support. CDI sponsors this bill to allow pre-2014 nongrandfathered small group policies that were sold or renewed in 2013 to be renewed through October 1, 2016. CDI writes that plans subject to this transitional policy would continue to be subject to existing small group law regarding premiums, risk adjustment factors, and standard employee risk rates; other provisions of existing law, including the prohibition against the use of preexisting condition or waivered condition provisions, the prohibition against establishing rules for eligibility based on health status-related factors, waiting periods and disclosure requirements for solicitation, and sales materials. According to CDI, the impact of the extension of policies is different in the small group market than the individual market for a number of reasons: 1) Pre-existing condition exclusions were not permitted in the small group market prior to the ACA, and so the small group market is not exposed to an influx of previously uncovered lives; 2) Implementing the transitional policy preserves coverage options because the ACA does not SB 1446 | Page 13 require small employers to purchase coverage for their employees; 3) The transitional policy would have little impact on the SHOP because it is a small part of the small group insurance market; and, 4) The rate filings for the 2014 ACA compliant small group products indicate that the rate changes associated with adding health benefits to comply with the EHB benchmark are between 0 and 2.7 percent because small group coverage already includes comprehensive benefits, in large part due to the state mandates that were already in place. A number of employer and insurance organizations, such as the California Chamber of Commerce and the California Association of Health Underwriters write that this extended transitional period will give small employers more time to prepare to bear the costs associated with fully ACA compliant plans, minimizing the potentially negative impacts this new burden could have on the continuing economic recovery. 6.Support if Amended. The Bay Area Council writes that a one year extension of non-ACA compliant plans is sufficient time to assist small employers in their transition to new federal regulations, but will minimize the potential negative impact on ACA implementation. Moreover, the definition of small employer will grow to 100 full time equivalent employees or less in January 2016, potentially putting these new entrants at a significant disadvantage. A lengthy extension of these exemptions could also threaten the financial viability of the SHOP exchange through Covered California by allowing a certain portion of the small group market to operate under a different regulatory environment. 7.Concerns. A number of employer groups, including the Silicon Valley Leadership Group, Small Business California and the Los Angeles Area Chamber of Commerce write that this bill could considerably disrupt the small employer health insurance market by fracturing the small group market with some plans complying with the ACA and others operating under a different set of rules. These employer groups write that this undermines the goals of the ACA and could create instability, leading to higher premiums for business. This bill would also hurt the SHOP by leading to premium increases and anemic enrollment until at least 2018. SHOP is required to be self-sustaining, starting in 2015, which will be difficult, perhaps impossible, without strong enrollment growth beforehand. SB 1446 | Page 14 8.Opposition. The Small Business Majority opposes this bill because it would roll back existing state law by removing protections for the 2.5 million small business owners and employees who purchase health coverage in the small group market. The Small Business Majority writes that as of January 1, 2014 state law provides additional protections to our state's small entrepreneurs by guaranteeing the health insurance products they purchase meet minimum standards, contain limits on out-of-pocket costs and fit into standardized "metal tiers" that provide more transparency when shopping for insurance. This bill proposes to undo these improvements already in effect for small businesses and their covered employees and delay these provisions until 2017. This would also hurt the SHOP administered by Covered California because plans outside of Covered California would operate under a different set of rules. Health Access California writes that this bill would undo numerous consumer protections that assure that covered employees of small businesses will have EHBs, limits on out-of-pocket costs, protection against rescission, the ability to shop for standardized plans based on apples to apples comparisons and limits on deductibles. Consumers Union fears this bill will create a climate for adverse selection against Covered California. 9.Amendments. a. Specialized health plans and insurance policies are not subject to the authority provided under this bill. Specialized health plans are explicitly excluded in the Health and Safety Code provisions of this bill. Because specialized health insurance policies are "excepted benefits," they are also excluded from the Insurance Code provisions. However, to be parallel and explicit, the sponsor requests an amendment to make this clear. b. The author proposes additional amendments to limit the renewal of policies to one year only and to establish specified notices to be issued by the small group health plans and health care benefit plans. SUPPORT AND OPPOSITION : Support: California Department of Insurance (sponsor) Associated Builders and Contractors of California California Asian Pacific Chamber of Commerce California Association of Health Underwriters California Chamber of Commerce California Manufacturer and Technology Association SB 1446 | Page 15 California Restaurant Association California Small Business Association Health Net Independent Agents and Brokers of California National Association of Insurance and Financial Advisors - California National Federation of Independent Businesses Oppose: American Federation of State, County and Municipal Employees, AFL-CIO Consumers Union Health Access Small Business Majority -- END --