BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1163


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          Date of Hearing:  April 14, 2015


                            ASSEMBLY COMMITTEE ON HEALTH


                                  Rob Bonta, Chair


          AB 1163  
          (Rodriguez) - As Introduced February 27, 2015


          SUBJECT:  Health care services plan and health insurers:  agents  
          and brokers:  notice of contract changes.


          


          SUMMARY:  Prohibits a health care service plan (plan) or health  
          insurer (insurer) from making material changes to contracts with  
          insurance agents or brokers without providing at least 120 days  
          of notice.  Specifically, this bill:  





          1)Prohibits a material change made by a plan or insurer to the  
            terms and conditions of a contract with an agent or broker  
            from becoming effective until the plan or insurer has provided  
            at least 120 days of written or electronic notice indicating  
            the change to the contract.

          2)Defines "material" as a provision in a contract to which a  
            reasonable person would attach importance in determining the  
            action to be taken upon the provision.









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          3)Specifies that the notice requirement shall not apply if the  
            change to the contract is mutually agreed upon by the plan or  
            insurer and the agent or broker, or if the change is required  
            by state or federal law.

          4)Provides that violations of these provisions by a plan are  
            exempt from disciplinary and criminal offense provisions in  
            existing law.
          


          EXISTING LAW:  





          1)Establishes the Knox-Keene Health Care Service Plan Act of  
            1975 (Knox-Keene), the body of law governing plans in the  
            state, and provides for the licensure and regulation of plans  
            by the Department of Managed Health Care (DMHC).

          2)Authorizes the Director of the DMHC to suspend or revoke the  
            license of a plan, or assess administrative penalties if the  
            Director determines that the licensee has committed any acts  
            or omissions constituting grounds for disciplinary action;  
            provides that any person who violates provisions of Knox-Keene  
            is liable for a civil penalty of up to $2,500 for each  
            violation through a civil action; and, provides for other  
            enforcement procedures, including provisions relating to  
            criminal offenses.

          3)Provides for the regulation of insurers and health insurance  
            agents and brokers by the California Department of Insurance.

          4)Defines a health insurance agent as a "life licensee," which  
            is a person authorized to transact insurance coverage for  
            sickness, bodily injury, or accidental death and may include  
            benefits for disability income.   








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          5)Prohibits, with certain exceptions, a property and casualty  
            insurer from terminating or amending a contract with an agent  
            or broker of property and casualty insurance that has been in  
            effect for at least one year, unless 120 days of advanced  
            written notice has been given by the insurer to the agent or  
            broker.  
          


          FISCAL EFFECT:  None





          COMMENTS:  

          1)PURPOSE OF THIS BILL.  According to the author, this bill  
            responds to recent actions by a health insurance carrier that  
            made substantial material changes to its contract with agents,  
            providing only 48 hours' notice before those changes took  
            effect.  The author states that this bill will prevent this  
            from occurring by requiring plans and insurers to provide  
            their appointed agents with 120-days advance notice of any  
            material changes in their contracts.  The author states that  
            the notice period is patterned on current property and  
            casualty insurance agent notice agreements, and that this bill  
            would require a delay of implementation of any substantive  
            change made to a contract by a plan or insurer until proper  
            notice is given to the agent.


          2)BACKGROUND.  

             a)   Insurance agents.  An insurance agent is a person who  
               contracts with an insurance plan or insurer to sell their  
               products.  In doing so, agents assist individuals and  
               employers purchase health insurance coverage that fits  








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               their specific budget and health care needs.

             According to the California Association of Health  
               Underwriters (CAHU), due to statutory and market pressures,  
               health insurance has changed into an extremely complex  
               product, and insurance agents review a wide variety of  
               plans and compare them to the scope of what an individual  
               or employer wants or needs to cover.  This may include an  
               analysis of a plan or insurer provider networks, and  
               monthly premium costs and out-of-pocket cost sharing.

             Agents assist individuals and employers to make informed  
               choices on coverage options and provide ongoing services  
               and support, including assistance with claims, coverage  
               issues, enrollment changes, coverage renewal, and others.

             b)   Contracts.  Contracts between agents and brokers and  
               insurance carriers set forth the terms and conditions of  
               their business relationship.  Contracts between agents and  
               carriers contain provisions regarding compensation,  
               required levels of client service, reporting requirements,  
               and other provisions.  

          These contracts generally contain provisions outlining how  
          changes to the contract may be made, and when they take effect.   
          However, there is no standard contract required, and contract  
          provisions vary among insurance carriers.  For example, one  
          major carrier's contract stipulates that the carrier may amend  
          the contract, and any addenda or exhibits, with 30 days prior  
          written notice to the contracting agent.  Another contract  
          issued by a major carrier stipulates that the company has the  
          right to amend the contract, including commission schedules, as  
          it deems appropriate and such amendments to the contract shall  
          become effective on the date set forth in the amendment, or upon  
          receipt of the amendment via certified mail.  However, that same  
          carrier issued an amendment to the commission schedule in the  
          contract, and included in that amendment a stipulation that the  
          carrier may presume the agent agrees and accepts the terms of  
          the amendment unless the agent objects within 30-days. 








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             c)   Commissions.  Plans and insurers set aside a portion of  
               the premium to pay licensed agents a commission that  
               generally covers the selling of the plan or insurance  
               policy, as well as ongoing servicing.  Contracts between  
               agents and plans and insurers contain a commission schedule  
               outlining the amount of commissions an agent will be paid,  
               the timing of payment of commissions, and other provisions.  


          Plans and insurers sometimes use commissions to drive agents to  
          sell certain products by increasing commissions for products  
          they wish to aggressively market.  Conversely, they may lower  
          commissions to deter agents from selling certain products.  For  
          example, if a plan or insurer has saturated a market with a  
          certain product, or determines that a product is creating  
          losses, they may opt to lower commissions, thus decreasing  
          financial incentives for agents to sell the product.  

          Changes to commissions may impact agents, not only in the amount  
          of ongoing compensation for a certain product, but also in terms  
          of time and resources invested in selling and servicing a  
          product.  For example, agents may spend days or weeks working up  
          a policy for a client based on the assumption of a certain  
          commission.  For larger clients, such as large employers, it may  
          take a team of agents to work up a policy, and agents may make  
          investments in additional staff to provide ongoing servicing of  
          a policy after it is sold.  According to CAHU, if the commission  
          rate for a certain product is changed, agents may need time to  
          lay out other options for the client to consider or select.

          In the case cited by the author as the impetus for this bill, a  
          carrier sent notice to its agents informing them that the  
          carrier had made a decision to significantly reduce commissions  
          in California new business related to a certain product.  In  
          doing so, the carrier informed agents that they had two days to  
          submit any new business to the carrier in order to get paid at  
          the prior higher commission rate.  Any new business submitted  
          after that two day period would be compensated at the lower  








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          commission.

          3)SUPPORT.  CAHU, Independent Insurance Agents and Brokers  
            Association of California, and the National Association of  
            Insurance and Financial Advisors, the cosponsors of this bill,  
            state that not only does this bill respond to recent actions  
            by a health insurance carrier that made material changes to a  
            contract with only 48 hours' notice, it also levels the  
            playing field and provides fair and reasonable notice to  
            licensed agents when their contract is substantially changed.

          The sponsors state that most contracts contain provisions that  
            address how and when notice of changes to the contract can be  
            implemented, however, many contracts contain separate clauses  
            that allow carriers to make substantial changes to the  
            agreement without any notice at all.  The sponsors state that  
            agents understand that business needs can sometimes drive a  
            need for a material change, and this bill ensures that a  
            change desired by the carrier can take effect as soon as  
            proper notice is given.

          4)OPPOSITION.  The Association of California Life and Health  
            Insurance Companies (ACLHIC) and the California Association of  
            Health Plans (CAHP) oppose this bill, stating that it would  
            unnecessarily interfere with private party contracts and seeks  
            to offer a legislative remedy to an issue better handled  
            through the course of contractual negotiations and agreements.  
             ACLHIC and CAHP state that this bill usurps current contract  
            negotiation practices which already have self-imposed time  
            frames and notification agreements, and where violations are  
            treated as a breach of contract.

          The opposition argues that a vast majority of their member  
            companies currently have a 30-day notification agreement built  
            into their existing contract frameworks and deviation from  
            that would result in significant expense and confusion.   
            Lastly, ACLHIC and CAHP state that the definition of  
            "material" change under this bill is vague and may introduce  
            further confusion into the contractual negotiation process.








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          5)RELATED LEGISLATION.  AB 1425 (Allen) would prohibit a plan or  
            insurer from entering into a contract with a solicitor, or an  
            agent or broker, that varies the compensation paid to the  
            agent or broker for the sale of a plan based on whether a  
            small employer implements a health reimbursement arrangement  
            to supplement the benefits of the plan.


          
          6)POLICY COMMENT
            
             a)   Is the 120-day notice timeframe set forth in this bill  
               too long?  A 30-day notice period is commonly used in  
               contracts between insurers and agents.  This bill, although  
               introduced in response to an incident involving a two day  
               notice of contract changes, would quadruple that notice  
               period.  This bill is based the 120-day period on existing  
               law governing property and casualty insurance.  However,  
               due to the dynamic nature of the health insurance market, a  
               shorter notice timeframe may be merited to allow insurers  
               the ability to respond to market changes in a timely way.

             b)   Definition of "material" change is unclear.  The bill  
               would define "material" as a provision in a contract to  
               which a reasonable person would attach importance in  
               determining the action to be taken upon the provision.   
               This definition defines the contract provision as material,  
               rather than the change to the contract, and the language  
               regarding the attachment of importance could be widely  
               interpreted.  The Committee may wish to make clarifying  
               amendments to the definition of "material" currently in the  
               bill.

          7)DOUBLE REFERRED.  This bill is double referred, upon passage  
            in this Committee, it will be referred to the Assembly  
            Committee on Insurance.
          









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          REGISTERED SUPPORT / OPPOSITION:





          Support





          California Association of Health Underwriters (cosponsor)


          Independent Insurance Agents and Brokers Association of  
          California (cosponsor)


          National Association of Insurance and Financial Advisors  
          (cosponsor)


          








          Opposition













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          Association of California Life and Health Insurance Companies 


          California Association of Health Plans 





          Analysis Prepared by:Kelly Green / HEALTH / (916) 319-2097