BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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.








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          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;








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             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  








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            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  








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            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  








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               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.











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               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  








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               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  








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               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  








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               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;










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                 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  








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            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  








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               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 2014   the 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)."
          









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          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)










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          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)  








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          319-2097