BILL ANALYSIS Ó AB 1305 Page 1 Date of Hearing: April 28, 2015 ASSEMBLY COMMITTEE ON HEALTH Rob Bonta, Chair AB 1305 (Bonta) - As Introduced February 27, 2015 SUBJECT: Limitations on cost sharing: family coverage. SUMMARY: Requires family health plan contracts and insurance policies to include a per-individual deductible and out-of-pocket cost sharing limit that is no greater than the amount for an individual plan or policy. Specifically, this bill: 1)Requires, for family coverage, a limit on annual out-of-pocket expenses for coverage of essential health benefits (EHBs) to include a maximum out-of-pocket limit for each individual covered by the plan that is less than or equal to the maximum out-of-pocket limit for individual coverage. 2)Requires a health care service plan or health insurance policy for family coverage that includes a deductible to include a deductible for each individual covered by the plan that is less than or equal to the deductible for individual coverage. 3)Requires a high deductible health plan to include a deductible for each individual covered by the plan that is less than or AB 1305 Page 2 equal to the higher of the amount set forth in federal law (Add in amount here), or the deductible for individual coverage under the plan contract. EXISTING LAW: 1)Establishes the federal Patient Protection and Affordable Care Act (ACA), which enacts various health care coverage market reforms including annual limits on specified forms of cost sharing, including deductibles, on all essential health benefits for individual and group health insurance coverage. 2)Establishes the Knox-Keene Health Care Service Plan Act of 1975, which provides for the licensure and regulation of health care service plans by the Department of Managed Health Care. 3)Provides for the regulation of health insurers by the California Department of Insurance. 4)Establishes, in state government, the California Health Benefits Exchange (Exchange), referred to as Covered California, as an independent public entity not affiliated with an agency or department, and requires the Exchange to compare and make available through selective contracting health insurance for individual and small business purchasers as authorized under the ACA. 5)Requires, under both federal and state law, that health plans and insurers issuing health benefit plans in the individual and small group market comply with specified requirements regarding the offering, sale, and scope of coverage provided, including requirements to cover the following 10 categories of EHBs: ambulatory patient services; emergency services; hospitalization; maternity and newborn care; mental health and AB 1305 Page 3 substance use disorder services, including behavioral health treatment; prescription drugs; rehabilitative and habilitative services and devices; laboratory services; preventive and wellness services and chronic disease management; and, pediatric services, including oral and vision care. 6)Requires a non-grandfathered health care service plan (plan) and health insurance policy (policy) in the individual or small group market that is issued, amended, or renewed on or after January 1, 2015, to provide for a limit on annual out-of-pocket expenses for all EHBs, including out-of-network emergency care. Non-grandfathered plans and policies must comply with all ACA requirements. 7)Requires a non-grandfathered plan or policy in the large group market that is issued, amended, or renewed on or after January 1, 2015, to provide for a limit on annual out-of-pocket expenses for essential health benefits, including out-of-network emergency care to the extent that the limit does not conflict with federal law or guidance on out-of-pocket maximums for non-grandfathered plans or policies in the large group market. 8)Limits deductibles for plans and policies in the small group market to $2,000 for an individual, and $4,000 for a family. 9)Specifies that the maximum out-of-pocket limit shall apply to any copayment, coinsurance, deductible, and any other form of cost sharing for all EHBs, shall not exceed limits set forth in federal law and regulations, and shall result in a total maximum out-of-pocket limit for all covered EHBs equal to the dollar amounts prescribed by federal law. FISCAL EFFECT: This bill has not yet been analyzed by a fiscal committee. COMMENTS: AB 1305 Page 4 1)PURPOSE OF THIS BILL. According to the author, this bill prohibits a health plan or insurer from imposing a higher deductible and limit out-of-pocket costs on an individual simply because the individual is a member of a family. The author explains that health plans and insurance policies often include a deductible amount, as well as limits on the amount out-of-pocket costs a person or family may incur in a year. The author states that some family plans and policies include deductibles and out-of-pocket limits for individual in the plan or policy, so when a family member gets sick, they only have to reach the individual deductible or cost-sharing limit in order for coverage to kick-in. However, the author states other plans and insurers do not include these individual deductibles and out-of-pocket costs limits within a family plan or policy, which means that families with one member who has more expensive health care needs would have to reach the family limits before coverage kicks in. The author contends that under this structure, families with one member with high health care costs are forced to pay thousands of dollars in out-of-pocket expenses simply because they are in a family. The author states that this bill creates parity between what consumers pay in individual and family plans by requiring individual deductibles in family plans. The author asserts that this bill is critical to ensure consumers are not unfairly charged for doing what is right by getting family coverage. The author concludes that this bill is consistent with federal regulations regarding limits on out-of-pocket cost sharing, and will make California a national leader in terms of deductibles. 2)BACKGROUND. a) Deductibles and other consumer out-of-pocket cost sharing. Most health plans and insurers require enrollees to pay a portion of the cost of care when they seek AB 1305 Page 5 services, in addition to any premium that they must pay for the plan. Plans and insurers generally have several forms of cost sharing, including deductibles, which must be paid by patients before the plan begins paying toward some or most services, and copayments or coinsurance which must be paid by patients at the time they receive services. The ACA sets forth limits on the amount of out-of-pocket cost sharing an individual or family pays for their health coverage. This limit applies for costs related to deductibles, coinsurance, copayments, or similar charges and any other expenditure that is a qualified medical expense for EHBs. The limit does not count premiums or out-of-network cost sharing, or spending for non-essential health benefits. The federal maximum out-of-pocket cost limit for 2015 is $6,600 for an individual plan, and $13,200 for a family plan. Additionally, federal regulations limit maximum out-of-pocket limits for high deductible health plans (HDHPs) to $6450 per person in 2015. In a family plan, deductibles and maximum out-of-pocket limits may be structured in two ways. Some plans and policies impose an aggregate deductible or out-of-pocket maximum in family coverage. Under the aggregate structure, the total family deductible must be paid out-of-pocket before health insurance starts paying for health care services incurred by any family member. Take, for example, a plan or policy that has a $1,500 deductible for individual coverage, and a $3,000 deductible for a family coverage. Under this structure of aggregate deductibles, an individual in the family who falls ill would have to reach the $3,000 deductible before coverage would start, even though that same individual would have a $1,500 deductible if they had an individual plan. In contrast, most family plans and policies, in addition to an overall family deductible and out-of-pocket limit, embed lower deductibles and out-of-pocket limits for each individual in the family plan. Under this structure, one individual in the family plan has to reach his or her own lower individual deductible or out-of-pocket limit for coverage to commence, regardless of AB 1305 Page 6 whether the larger family deductible is met. Using the same example in the preceding paragraph, the individual in the family who falls ill would only have to meet a $1,500 deductible before his or her coverage kicks in. This bill would require plans and policies to use this structure of embedded deductibles and out-of-pocket limits. b) Federal regulations. Current federal regulations set policy with regard to maximum out-of-pocket costs for individuals in a family plan. Specifically, on February 27, 2015, the U.S. Department of Health and Human Services (HHS) issued a notice of final regulations regarding cost sharing parameters, clarifying in a preamble that the annual limit on cost-sharing for individual coverage applies to all individuals regardless of whether the individual is covered by an individual plan or a group plan. HHS states that in both of these cases, an individual's cost sharing for EHBs may never exceed the individual cost sharing limits, and it is finalizing a technical correction to existing regulations to implement it. According to HHS, the clarification is an important consumer protection considering that some consumers have been confused by the applicability of the annual limitation on cost sharing in group plans, and the annual limitation on cost-sharing applies to all individuals regardless of whether the individual is covered by an individual plan or a group plan. These federal regulations do not apply to deductibles. c) Covered California standard benefit plan design. Each year, the Exchange sets a standard benefit design that plans and insurers must use when selling products through Covered California. With standardized benefits, consumers can more accurately compare plans and policies because the benefits are the same for all plans offered in the Exchange marketplace. Additionally, standardizing benefits ensures that the selected health insurance plans define what consumers get and limit the consumer's out-of-pocket costs by type of service. AB 1305 Page 7 The Exchange's standard benefit design for 2015, which was adopted into regulations by the Exchange board, contained provisions similar to those proposed in this bill. Specifically, it required that, in a family plan, an individual is responsible for only the individual deductible and the individual out-of-pocket maximum amount. For HDHPs linked to a health savings account (HSA), in a family plan, each individual in the family must meet a deductible of $2,600, as required by federal law, and each individual must meet individual out-of-pocket maximum that is the same for individual coverage. In January 2015, the Exchange released its proposed standard benefit design for 2016, which included similar provisions. Specifically, the proposed standard benefit design requires that for all group plans and policies, including high deductible health plans linked to health savings accounts, an individual's payment toward a deductible is limited to the individual annual deductible amount. Additionally, an individual's out-of-pocket contribution is limited to the individual's annual out-of-pocket maximum. d) California Health Benefits Review Program (CHBRP) analysis. CHBRP conducted an evidence-based assessment of this bill which was published on April 22, 2015. According to the analysis, over 97% of enrollees in plans or policies subject to this bill are covered by plans and policies that have no deductible, or already have an embedded deductible. According to CHBRP, all plans and insurance policies offered through Covered California have embedded deductibles and out-of-pocket limits. CHBRP found that HDHPs, which can be paired with tax-advantaged HSAs or health reimbursement accounts would be the only products affected by this bill. As such, this bill would affect the insurance of approximately 2.1% (506,722) of the 24.6 million Californians who have health insurance regulated by the state that may be subject to any state health benefit mandate law. AB 1305 Page 8 Under federal rules, deductibles for individual HDHP plans may be no less than $1,300. Family HDHPs may not have deductibles less than $2,600 whether paid for a single member of the family, or by multiple members of the family. For this reason, CHBRP found that, because the bill would require a per-individual deductible of $1,300 embedded the family plan, it could put family HDHPs out of compliance with federal regulations. As a result families who have an HDHP would not be permitted to use an HSA because the plan is not HSA-compliant. In response to this issue, CHBRP assumed that plans and insurers would either i) continue to offer HSA-compatible HDHPs for individual enrollees with deductibles of $1,300 allowing families to continue to purchase an HDHP, but without the HSA; or, ii) raise the minimum deductible for both individuals and families to $2,600, making the plans compliant with federal rules and HSA-compatible. CHBRP based its cost-estimate of the bill on the second assumption that plans and insurers would raise the HDHP deductible to $2,600 for both individuals and families, and determined that this bill would decrease total net annual expenditures by consumers of $37.7 million. The majority of these savings (over $20 million) would come from reduced premiums in the individual market. CHBRP estimated that approximately $12 million of the savings would be due to a reduction in cost-shares as individuals may reduce utilization due to a higher deductible, and families benefitting from having the embedded individual deductible in their plan. 3)SUPPORT. Health Access California (HAC), the sponsor of this bill, states that this bill would assure that no Californian has a deductible or out-of-pocket limit higher than the individual deductible or out-of-pocket limit, respectively. HAC states that one of the most important protections of the ACA is the maximum out-of-pocket limit, which will save Americans from medical bankruptcy. HAC asserts that this bill will further protect Californians by assuring that no individual with family coverage will have higher medical costs AB 1305 Page 9 simply because they belong to a family. Other supporters state that this bill removes the inequality between individuals and families, by limiting deductibles and out-of-pocket maximums to the individual limit when the individual is a member of a family, will make sure that individuals are not financially penalized because they get sick and are in a family plan, and will prevent financial insecurity and overwhelming debt for families when one family member has significant health needs. 4)OPPOSITION. The California Chamber of Commerce (Chamber) states that this bill will drive up premium costs for employers and employees, that stricter caps on cost-sharing requirements do not address overall health care affordability. The Chamber states that this bill will have a disproportionate impact on small-group premiums because small group plans are subject to a deductible limit. The Chamber argues that, due to the limitations on cost-sharing imposed by this bill, all families would have to pay higher premiums, and it makes little sense to help families afford their out-of-pocket costs if it jeopardizes their ability to afford coverage altogether. The Chamber concludes that the fact that deductibles, cost-sharing, and premiums are prohibitively expensive for some individuals and families reflects the unsustainable costs of our health care system, and this problem cannot be addressed by simply capping out-of-pocket costs. 5)RELEVANT LEGISLATION. AB 339 (Gordon) requires a plan or insurer to provide coverage for medically necessary prescription drugs, including those for which there is no therapeutic equivalent; establishes limits on cost-sharing for covered outpatient prescription drugs; and, prohibits plans and insurers from placing specified prescription medications on the highest cost tiers of a drug formulary. AB 1305 Page 10 6)PREVIOUS LEGISLATION. a) SB 639 (Ed Hernandez), Chapter 316, Statutes of 2013, codifies provisions of the ACA relating to out-of-pocket limits on cost-sharing. b) AB 1917 (Gordon) of 2014, similar to AB 339, would have established limits on the copayment, coinsurance, or any other form of cost-sharing for a covered outpatient prescription drug for an individual prescription to a specified proportion of the annual maximum out-of-pocket limit with respect to an individual or group plan or policy, as specified. This bill was ordered to the inactive file at the request of the author. c) AB 1453 (Monning), Chapter 854, Statutes of 2012, and SB 951 (Ed Hernandez), Chapter 854, Statutes of 2012, establish California's EHBs. d) AB 1602 (John A Pérez), Chapter 655, Statutes of 2010, and SB 900 (Alquist), Chapter 659, Statutes of 2010, establishes the Exchange and its powers and duties. 7)POLICY COMMENT. Federal cost-sharing limits for HDHPs set the minimum deductibles at $1,300 for an individual and $2,600 for a family. As such, family HDHPs must meet the minimum $2,600 deductible regardless of whether that amount is met by all members of the family, or a single member of the family. This bill would require a per-individual deductible to be embedded within a family HDHP, meaning that an individual in a family HDHP would only have to meet a $1,300 deductible, rather than the federally-required $2,600, for coverage to kick in. As stated in the CHBRP analysis, this could put family HDHPs out of compliance with federal regulations, and potentially limit AB 1305 Page 11 the ability of some to purchase an HDHP linked with an HSA. Additionally, state law limits small group plans and policies to a $2,000 individual deductible and a $4,000 family deductible. As currently drafted, this bill would require a family HDHP to include a per-individual deductible of $2,000. If an HDHP adhered to federal rules, and kept the $2,600 minimum deductible, it would also be out of compliance with state law governing the small group market. In order to avoid potential non-compliance with federal HDHP rules or state law regarding small group deductibles, the author may wish to amend the bill to require HDHPs to include a per-individual deductible that conforms to the federal $2,600 minimum HDHP deductible. REGISTERED SUPPORT / OPPOSITION: Support Health Access California (sponsor) American Cancer Society Cancer Action Network American Federation of State, County, and Municipal Employees, AFL-CIO California Black Health Network California Chronic Care Coalition California Labor Federation California Pan-Ethnic Health Network California Primary Care Association California School Employees Association California Teachers Association CALPIRG AB 1305 Page 12 Consumers Union National Association of Social Workers, California Chapter Western Center on Law and Poverty Opposition California Chamber of Commerce Analysis Prepared by:Kelly Green / HEALTH / (916) 319-2097