BILL ANALYSIS Ó SB 43 Page 1 Date of Hearing: July 14, 2015 ASSEMBLY COMMITTEE ON HEALTH Rob Bonta, Chair SB 43 (Ed Hernandez) - As Amended April 20, 2015 SENATE VOTE: 37-0 SUBJECT: Health care coverage: essential health benefits. SUMMARY: Updates California law related to the definition of essential health benefits (EHBs) to make it consistent with recent federal regulations under the Patient Protection and Affordable Care Act (ACA). Specifically, this bill: 1)Updates existing law to reflect that the Kaiser Foundation Health Plan Small Group HMO 30 plan as offered during the first quarter of 2014 (rather than 2012) is California's EHB benchmark. 2)Updates existing law to reflect that, for pediatric vision care, the Federal Employees Dental and Vision Insurance Program (FEDVIP) as offered during the first quarter of 2014 (rather than 2012) California's benchmark for pediatric vision care. 3)Prohibits, for plan years commencing on or after January 1, 2017, limits on habilitative and rehabilitative services from being combined. SB 43 Page 2 4)Replaces the existing definition of habilitative services with the following: "Habilitative Services" means health care services and devices that help a person keep, learn, or improve skills and functioning for daily living. Examples include therapy for a child who is not walking or talking at the expected age. These services may include physical and occupational therapy, speech-language pathology, and other services for people with disabilities in a variety of inpatient or outpatient settings, or both. 5)Extends emergency regulation authority for the Department of Managed Health Care (DMHC) and the California Department of Insurance (CDI) and makes this authority inoperative on July 1, 2018. EXISTING LAW: 1)Provides for the regulation of health plans by DMHC and regulation of health insurers by CDI. 2)Establishes as California's EHBs the Kaiser Small Group HMO 30 plan as offered during the first quarter of 2012 along with the following 10 federally mandated benefits under the ACA as well as other state mandated benefits: a) Ambulatory patient services; b) Emergency services; c) Hospitalization; d) Maternity and newborn care; SB 43 Page 3 e) Mental health and substance use disorder services, including behavioral health treatment; f) Prescription drugs; g) Rehabilitative and habilitative services and devices; h) Laboratory services; i) Preventive and wellness services and chronic disease management; and, j) Pediatric services, including oral and vision care. 3)Defines "habilitative services" as medically necessary health care services and health care devices that assist an individual in partially or fully acquiring or improving skills and functioning and that are necessary to address a health condition, to the maximum extent practical. These services address the skills and abilities needed for functioning in interaction with an individual's environment. Examples of health care services that are not habilitative services include, but are not limited to, respite care, day care, recreational care, residential treatment, social services, custodial care, or education services of any kind, including, but not limited to, vocational training. 4)Requires habilitative services to be covered under the same terms and conditions applied to rehabilitative services under the plan contract. 5)Requires, with respect to habilitative services, coverage to also be provided as required by federal rules, regulations, and guidance issued pursuant to ACA. 6)Requires, with respect to pediatric vision care, the same health benefits for pediatric vision care covered under the FEDVIP vision plan with the largest national enrollment as of SB 43 Page 4 the first quarter of 2012. 7)Requires, with respect to pediatric oral care, the same health benefits for pediatric oral care covered under the dental plan available to subscribers of the Healthy Families Program (HFP) in 2011-12, including the provision of medically necessary orthodontic care provided pursuant to the federal Children's Health Insurance Program (CHIP) Reauthorization Act of 2009. FISCAL EFFECT: According to the Senate Appropriations Committee, this bill results in: 1)One-time costs over $150,000 to revise regulations by CDI (Insurance Fund). 2)One-time costs over $150,000 to revise regulations by DMHC (Managed Care Fund). 3)No anticipated impact to state health care program such as Medi-Cal or California Public Employees' Retirement System (CalPERS). This bill's provisions make minor changes to statute governing the individual and small group health care markets, which do not include those programs. 4)No cost to the state to provide subsidies for additional costs to Covered California plans, due to the change to the definition of habilitative services. Recent federal guidance SB 43 Page 5 indicates that states are not obligated to defray any additional subsidy costs in health benefit exchanges due to a change to the definition of habilitative services. COMMENTS: 1)PURPOSE OF THIS BILL. According to the author, in 2012, the Legislature established California's benchmark EHB plan through a process that recognized the importance of existing state-mandated benefits incorporating as many state mandates as possible; protecting California's commitment to reproductive services; embracing the consumer-oriented regulatory framework in place at DMHC; and maintaining affordability for consumers. Using these principles and through a process of comparison, SB 951 (Ed Hernandez), Chapter 866, Statutes of 2012, paired with AB 1453 (Monning), Chapter 854, Statutes of 2012, designated the Kaiser Small Group HMO to serve as the state's benchmark plan. The author states that, earlier this year, the federal government issued new regulations requiring states to update their EHBs based on 2014 benchmark plans. The new regulations also create a definition of habilitative services and devices that is more generous than California's current definition. The author states that this bill has been introduced to make statutory changes necessary to conform to federal requirements. 2)BACKGROUND. a) 2012 EHB Selection. Under the ACA, plans sold through Covered California and those providing coverage to individuals and small employers not through Covered California are required to ensure coverage of EHBs, as defined by the federal Secretary of the Department of Health and Human Services (HHS). HHS is required to ensure that the scope of EHBs is equal to the scope of benefits SB 43 Page 6 provided under a typical employer plan, as determined by the Secretary. In 2011, the federal Center for Consumer Information and Insurance Oversight (CCIIO) released an EHB Bulletin proposing that EHBs be defined using a benchmark approach. Such an approach gave states the flexibility to select a benchmark plan that reflected the scope of services offered by a "typical employer plan." If a state did not choose a benchmark health plan, the default benchmark plan for the state would be the largest plan by enrollment in the largest product in the small group market as of the first quarter of 2012. EHBs must include coverage of services and items in all 10 statutory categories required in the ACA. States were permitted to choose among the following benchmark health insurance plan options: i) One of the three largest small group plans in the state by enrollment; ii) One of the three largest state employee health plans by enrollment; iii) One of the three largest federal employee health plan options by enrollment; or, iv) The largest HMO plan offered in the state's commercial market by enrollment. In January 2012, Covered California retained a consulting firm, Milliman, to analyze and compare the health services covered by the 10 EHB California benchmark plan options. The analysis was used by stakeholders in the decision making process for selecting the EHB benchmark plan effective January 1, 2014. SB 43 Page 7 Milliman found all the plans to be comprehensive and found there to be only a very small cost difference between the optional plans. The Legislature, with stakeholder input, chose the Kaiser Small Group HMO, which was also the default plan had California not made an affirmative choice. Also, if a base-benchmark plan selected by a state does not include items or services within one or more of the EHBs, the plan must be supplemented by the addition of the entire category of such benefits offered under any other benchmark plan option. To supplement the Kaiser Small Group HMO base benchmark plan in the areas of pediatric vision and pediatric dental services, the state selected the FEDVIP plan for pediatric vision, and CHIP, formerly referred to as HFP, for pediatric dental services. The 2012-13 state Budget required the transition of children enrolled in the HFP to the Medi-Cal program. As such, CHIP-eligible children are covered under Medi-Cal. For the purposes of selection of the state's CHIP program to supplement the base-benchmark plan, dental benefits provided under the Medi-Cal program serves as the benchmark for pediatric dental benefits. a) EHB Selection for 2017. A recent federal regulation SB 43 Page 8 issued by CCIIO, requires states to use 2014 plans to define EHB, starting with the 2017 plan year. The process will largely mirror the prior benchmark selection process conducted in 2012. The benchmark options and default plan are the same 10 types as in 2012. If a benchmark plan does not include items or services within one or more of the 10 federally required EHB categories, the EHB must be supplemented by the addition of the entire category of such benefits offered under any other benchmark plan option. If the benchmark does not include coverage of habilitative services, the state may determine which services are included in that category. Under the Knox-Keene Health Care Service Plan Act of 1975, coverage requirements are based on medical necessity. The federal guidance indicates states should consider the new definition of habilitative services and devices to determine if coverage exists, and indicates there is no need to defray qualified health plan subsidy costs if a mandate is passed to supplement the habilitative coverage category. States that plan to select an EHB benchmark were required to identify their proposed benchmark plan (including supplementation if necessary) and send supporting documents to CCIIO by June 1, 2015. As was the case in 2012, states that do not make a plan selection default to the largest product by enrollment in the state's small group market. Final benchmark plans selections are due to CCIIO by August 2015, and will be published in the Federal Register in fall of 2015. On April 17, 2015, the Secretary of California's Health and Human Services Agency sent a letter to CCIIO selecting the Kaiser Small Group HMO as the state's proposed benchmark plan. Additionally, the state has selected the state's CHIP program for pediatric oral services and the FEDVIP with the largest national enrollment as of the first SB 43 Page 9 quarter of 2014 as the pediatric vision services benchmark. b) 2015 Milliman analysis. The California Health Benefits Review Program (CHBRP) asked Milliman to analyze and compare the health services covered by the 10 plans available to California as options for California's EHB benchmark effective January 1, 2017. Milliman found relatively small differences in average healthcare costs among the 10 benchmark options. Milliman did find differing coverage of acupuncture, infertility treatment, chiropractic care, and hearing aids. The three California small group plans are essentially the same average cost as the current California EHB plan and the California large group and CalPERS plans are approximately 0.2-1.0% higher. The estimated average costs for the three FEHBP options are approximately 1% higher than the current California EHB plan. As noted below, some recommend a change in the selected EHB base benchmark plan from the Kaiser Small Group HMO 30 plan to the CalPERS Kaiser HMO. According to the Milliman analysis, there are coverage differences between the two plans. The CalPERS Kaiser HMO includes coverage for hearing aids (with coverage limits), and infertility treatment. While both plans provide coverage for home health care, the Kaiser Small Group HMO 30 covers 100 visits per year. The CalPERS Kaiser HMO does not limit the number of visits per year. Milliman estimated that with these coverage differences, selecting the CalPERS Kaiser HMO would result in an increase in allowed costs by 0.38%. Other coverage differences between the two plans include coverage by the CalPERS Kaiser HMO for certain categories of prosthetic an orthotic devices, eyeglasses or contact SB 43 Page 10 lenses following cataract surgery. These coverage differences were not factored into Milliman's cost estimate. c) Stakeholder engagement. On May 15, 2015, the Senate Health Committee held a stakeholder meeting where stakeholders were given an opportunity to hear from, and ask questions to, representatives of the CHBRP, Milliman, DMHC, CDI, and the Department of Health Care Services about EHBs for 2017. Following the meeting, some stakeholders submitted written comments to the Senate Health Committee offering a range of suggestions and recommendations for inclusion in this bill, including: i) Retaining the current Kaiser Small Group HMO 30 plan as the state's EHB benchmark; ii) Adopting the CalPERS Kaiser HMO plan as the state's EHB benchmark; iii) Conforming to the federal definition of "habilitative services"; iv) Prohibiting the combination of coverage limits on habilitative and rehabilitative services; v) Increasing the age limit for pediatric services from 19 to 21 years of age; SB 43 Page 11 vi) Including Medi-Cal's Early and Periodic Screening, Diagnosis, and Treatment benefit in the pediatric dental services benchmark; vii) Clarifying that no limits may be imposed on habilitative services to the extent they are medically necessary; and, viii) Prohibiting plans from excluding chiropractors as a category of provider, and prohibiting Covered California from precluding plans from covering chiropractic services if such services are not included in the Kaiser Small Group HMO 30 plan. 3)SUPPORT. Health Access California (HAC) states that EHBs assure individuals and small employers who purchase coverage that their benefits are as comprehensive as those offered by large employers, and prior to the enactment of EHBs, many Californians had minimal coverage that lacked coverage for basic health benefits. HAC supports the state's current definition of EHBs which assures comprehensive health benefits, and asserts that by conforming to the federal definition of "habilitative services" this bill will provide comprehensive habilitative services thus helping get families and children the care they need. Autism Speaks, the Center for Autism and Related Disorders, and other supporters support the redesignation of the Kaiser Small Group HMO 30 plan as the EHB standard, as well as the SB 43 Page 12 revised definition of "habilitative services" which, they state, provides examples of services that are covered and set the standard for care as services that help a person keep, learn, or improve sills and functioning for daily living. The Western Center on Law and Poverty (WCLP) supports this bill, although is disappointed that the Kaiser Small Group HMO 30 plan does not include coverage for hearing aids. WCLP and the National Health Law Program recommend changing the age for qualification of pediatric coverage from 19 to 21 years of age, in order to allow 19 and 20 year olds to receive services consistent with Medi-Cal. The California Insurance Commissioner Dave Jones supports this bill, if amended to choose the Kaiser CalPERS HMO for the state's EHB benchmark plan because it broadens coverage. The Amputee Coalition, and orthotics and prosthetics providers also support the bill if amended to select the CalPERS Kaiser HMO plan as the state's EHB benchmark plan, stating that the current EHB benchmark plan offers limited coverage for orthotics and prosthetics. 4)PREVIOUS LEGISLATION. a) SB 951 and AB 1453 select the Kaiser Small Group HMO 30 as California's benchmark plan to serve as the EHB standard, as required by federal law. b) SB 1321 (Harman), of 2012, would have required Covered California to select the plan with the lowest EHB cost to be the set benchmark for the definition of EHBs. SB 1321 failed passage in the Senate Health Committee. c) SB 51 (Alquist), Chapter 644, Statutes of 2011, established enforcement authority in California law to SB 43 Page 13 implement provisions of the ACA related to medical loss ratio requirements on health plans and health insurers and enacts prohibitions on annual and lifetime benefits. d) SB 900 (Alquist), Chapter 659, Statutes of 2010, and AB 1602 (Perez), Chapter 655, Statutes of 2010, established the California Health Benefit Exchange. 5)AMENDMENTS. The author would like to make the following amendments to this bill: a) Clarify that all of the proposed change in the bill become effective for the 2017 plan year. b) Replace an outdated reference to the HFP, with a reference to the Medi-Cal program with respect to pediatric oral benchmark benefits as follows: Page 5, lines 16 to 24: "With respect to pediatric oral care, the same health benefits for pediatric oral care covered under the dental benefit received by children under Medi-Cal as of 2014the dental plan available to subscribers of the Healthy Families Program in 2011-12, including the provision of medically necessary orthodontic care provided pursuant to the federal Children's Health Insurance Program Reauthorization Act of 2009. The pediatric oral care benefits covered pursuant to this paragraph shall be in addition to, and shall not replace, any dental or orthodontic services covered under the plan identified in paragraph (2)." SB 43 Page 14 REGISTERED SUPPORT / OPPOSITION: Support Insurance Commissioner Dave Jones (if amended) American Federation of State, County, and Municipal Employees, AFL-CIO Amputee Coalition (if amended) Autism Speaks California Association of Medical Product Suppliers (if amended) California Chiropractic Association (if amended) (previous version) California Orthotic and Prosthetic Association (if amended) California Primary Care Association California State University Dominguez Hills Orthotic and Prosthetic Program (if amended) SB 43 Page 15 California Teachers Association Center for Autism and Related Disorders Collier Orthotics and Prosthetics Health Access California National Association for the Advancement of Orthotics and Prosthetics (if amended) National Health Law Program (if amended) Occupational Therapy Association of California Planned Parenthood Affiliates of California Western Center on Law and Poverty Opposition None on file. Analysis Prepared by:Kelly Green / HEALTH / (916) SB 43 Page 16 319-2097