BILL ANALYSIS                                                                                                                                                                                                    Ó



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          PROPOSED CONFERENCE REPORT NO.  
          1 - February 22, 2016


          SB 2  
          X2 (Hernandez)


          As Amended  September 4, 2015


          2/3 vote


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          |SENATE: |      |(September 10,  |ASSEMBLY:  |      |(September 9,  |
          |        |      |2015)           |           |      |2015)          |
          |        |      |                |           |      |               |
          |        |      |                |           |      |               |
           ------------------------------------------------------------------- 
               (vote not relevant)                (vote not relevant)



          SENATE CONFERENCE VOTE: 3-2     ASSEMBLY CONFERENCE VOTE:  3-2  


           


           ------------------------------------------------------------------- 
          |Ayes:|Ed Hernandez, Leno,       |Ayes:|Bonta, Bonilla, Santiago    |
          |     |Mitchell                  |     |                            |
          |     |                          |     |                            |
          |-----+--------------------------+-----+----------------------------|
          |Noes:|Anderson, Nielsen         |Noes:|Gallagher, Patterson        |
          |     |                          |     |                            |
          |     |                          |     |                            |
          |     |                          |     |                            |








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          |     |                          |     |                            |
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          Original Committee Reference:  Not relevant  


           SUMMARY:  Reforms the existing managed care organization (MCO)  
          provider tax that is only paid by Medi-Cal managed care plans  
          (MCPs) and replaces it with a tax that would be assessed on  
          health care service plans licensed by the Department of Managed  
          Health Care (DMHC), and/or managed care plans contracted with  
          the Department of Health Care Services (DHCS) to provide  
          services to Medi-Cal beneficiaries, unless exempted, from July  
          1, 2016 to July 1, 2019  Specifically, the conference committee  
          amendments:  


          1)Specify it is the intent of the Legislature that DHCS  
            implement an MCO provider tax, effective July 1, 2016, to  
            provide ongoing funding for health care and prevention, and  
            minimize any need for new reductions to the program, and meet  
            all of the following goals:  a) generate an amount of  
            nonfederal funds for the Medi-Cal program, equivalent to the  
            sales tax currently imposed on MCPs; and, b) comply with  
            federal Medicaid requirements, as specified.


          2)Define various terms, including the following:


             a)   Alternate Health Care Service Plan (AHCSP) is a  
               nonprofit health care service plan with at least 4 million  
               enrollees statewide, that owns or operates pharmacies, and  
               provides professional medical services to enrollees in  
               specific geographic regions through an exclusive contract  
               with a single medical group in each geographic region in  
               which it is licensed;









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             b)   AHCSP enrollee is an individual enrolled in an AHCSP,  
               who is not a Medi-Cal beneficiary;


             c)   Base year means the 12-month period of October 1, 2014  
               through September 30, 2015;


             d)   Base data source means the quarterly financial statement  
               filings submitted by health plans to DMHC retrieved by DHCS  
               as of January 1, 2016, and supplemented by, as necessary,  
               Medi-Cal enrollment data for the base year as maintained by  
               DHCS and retrieved as of January 1, 2016:


             e)   Countable enrollee means an individual enrolled in a  
               health plan, during a month of the base year according to  
               the base data source.  Excludes from this definition an  
               individual enrolled in a Medicare plan, a plan-to plan  
               enrollee, or an individual enrolled in a health plan  
               pursuant to the Federal Employees Health Benefits Act of  
               1959;


             f)   Exclude plan means a prepaid health plan operating under  
               the laws of Mexico or a health plan owned and operated by a  
               501(c)(3) hospitals or health systems if that health plan  
               has both a substantial amount of its enrollment in and is  
               headquartered in either the County of Sacramento or San  
               Diego;


             g)   Health care service plan or health plan is a health care  
               service plan, other than a plan that provides only  
               specialized or discount services, that is licensed by DMHC  
               under the Knox-Keene Health Care Service Plan Act of 1975  
               or a managed care plan contracted with DHCS to provide  
               Medi-Cal services;








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             h)   Medi-Cal enrollee is an individual enrolled in a health  
               plan who is a Medi-Cal beneficiary for whom DHCS directly  
               pays the health plan in a capitated payment;


             i)   Other enrollee means an individual enrolled in a health  
               plan who is not a Medi-Cal beneficiary or an AHCSP  
               enrollee; and,


             j)   Plan to plan enrollee means an individual who receives  
               his or her health care services through a health plan  
               pursuant to a subcontract from another health plan.


             aa)  Impose a MCO provider tax on each health plan, unless  
               excluded, for the following fiscal years (FY):  a) 2016-17;  
               b) 2017-18; and, 2018-19.


          3)Specify the following Medi-Cal taxing tiers:


             -------------------------------------------- 
            |Enrollees          |2016-17 |2017-18|2018-19|
            |                   |        |       |       |
            |-------------------+--------+-------+-------|
            |   0 to 2,000,000  |  $40.00| $42.50| $45.00|
            |-------------------+--------+-------+-------|
            |    2,000,001 to   |  $19.00| $20.25| $21.00|
            |        4,000,000  |        |       |       |
            |-------------------+--------+-------+-------|
            |   Over 4,000,000  |   $1.00|  $1.00|  $1.00|
            |                   |        |       |       |
            |                   |        |       |       |
             -------------------------------------------- 









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          4)Specify the following other taxing tiers:


             -------------------------------------------- 
            |Enrollees          |2016-17 |2017-18|2018-19|
            |                   |        |       |       |
            |-------------------+--------+-------+-------|
            |   0 to 4,000,000  |   $7.50|  $8.00|  $8.50|
            |-------------------+--------+-------+-------|
            |    4,000,001 to   |   $2.50|  $3.00|  $3.50|
            |        8,000,000  |        |       |       |
            |-------------------+--------+-------+-------|
            |   Over 8,000,000  |   $1.00|  $1.00|  $1.00|
            |                   |        |       |       |
            |                   |        |       |       |
             -------------------------------------------- 



          5)Establish the following taxing tier for AHCSP (Kaiser):


             -------------------------------------------- 
            |Enrollees          | 2016-17|2017-18|2018-19|
            |                   |        |       |       |
            |-------------------+--------+-------+-------|
            |   0 to 8,000,000  |   $2.00|  $2.25|  $2.50|
            |                   |        |       |       |
            |                   |        |       |       |
             -------------------------------------------- 



          6)Establish the Health and Human Services Special Fund (HHSS  
            Fund) where all revenues, less refunds derived from the taxes  
            specified in this bill, would be deposited to the credit of  
            the HHSS Fund.  Requires that any interest and dividends  








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            earned on moneys to be retained in the HHSS Fund for funding  
            the nonfederal share of Medi-Cal managed care rates for health  
            care services furnished to children, adults, seniors and  
            persons with disabilities, and persons dually eligible for  
            Medi-Cal and Medicare.


          7)Require DHCS to provide an annual report to all health plans  
            accounting for the funds deposited in and expended from the  
            HHSS Fund, as determined by the DHCS Director.  Require the  
            report to identify the taxes imposed on each health plan and  
            provide an itemized accounting of expenditures from the HHSS  
            Fund.


          8)Require DHCS to determine for each health plan using the base  
            data source all of the following:  a) total cumulative  
            enrollment for the base year; b) total Medicare cumulative  
            enrollment for the base year; c) total Medi-Cal cumulative  
            enrollment for the base year; d) total plan-to-plan cumulative  
            enrollment for the base year; e) total cumulative enrollment  
            through the Federal Employees Health Benefits Act of 1959;  
            and, f) total cumulative enrollment for the base year that is  
            not otherwise counted in b) to e).  Authorizes the DHCS  
            Director to correct any identified material or significant  
            errors in the data.  Specifies that the DHCS Director's  
            determination on whether to exercise discretion and any  
            determination made by the DHCS Director is not subject to  
            judicial review, as specified.  Authorizes a health plan to  
            bring a writ of mandate to rectify an abuse of discretion  
            relating to the data specified above.


          9)Require DHCS to compute the annual tax for each health plan  
            subject to the tax, as specified.


          10)Require DHCS to collect the annual tax in four installments  
            and to determine the amount due for each installment in the  








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            state FY by dividing the annual tax for that state FY by four.  
             


          11)Prohibit DHCS from collecting the tax until it has received  
            approval from the federal Centers for Medicare and Medicaid  
            Services (CMS) that the tax is a permissible health  
            care-related tax and is eligible for federal financial  
            participation (FFP).  


          12)Require, on October 1, 2016, or the date DHCS receives the  
            federal approval, whichever is later, the following to  
            commence:


             a)   The DHCS Director to certify in writing that the federal  
               approval was received and within five business days, the  
               DHCS to post the certification on its Internet Website and  
               send a copy of the certification to the Legislature and  
               Legislative Counsel;


             b)   By October 14, 2016 or within 10 business days following  
               receipt of the notice of federal approval, whichever is  
               later, DHCS to send a notice to each health plan subject to  
               the tax, to contain:  i) the annual tax due for each FY;  
               and, ii) the dates on which the four installment tax  
               payments are due;


             c)   Requires a health plan to pay the annual tax in  
               installments, based on a schedule developed by DHCS.   
               Requires DHCS to establish the date that each tax payment  
               is due, provided that the first tax payment is due no  
               earlier than 20 days following the date the department  
               sends the notice specified in b) above, and the tax  
               payments to be paid at least one month apart, but no more  
               than one quarter apart;








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             d)   A health plan to pay the taxes that are due, in the  
               amounts and at times set forth in the notice, as specified.  
                The taxes assessed to be deposited in the HHSS Fund; and,


             e)   Interest accrues the day after the date the tax payment  
               is due.  Interest will be assessed for any amount that is  
               not paid on the due date at a rate of 10% per annum.   
               Provides that if a tax payment is more than 60 days  
               overdue, a penalty shall be assessed for each month for  
               which tax payment is not received after 60 days.   
               Authorizes the DHCS Director to waive a portion or all of  
               the interest or penalties or both, if the DHCS Director  
               determines that the imposition of the full amount of the  
               tax pursuant to the timelines has a high likelihood of  
               creating an undue financial hardship for the health plan or  
               creates a significant financial difficulty in providing  
               needed services to Medi-Cal beneficiaries.  Conditions a  
               waiver of the interest or penalties on the health plan's  
               agreement to make tax payments on an alternative schedule  
               that takes into account the financial situation of the  
               health plan and the potential impact on the delivery of  
               services to Medi-Cal beneficiaries.


          13)Provide that in the event of a merger, acquisition,  
            establishment, or any other similar transaction that results  
            in the transfer of health plan responsibility for all  
            countable enrollees from a health plan to another health plan  
            or similar entity, the resultant health plan shall be  
            responsible for paying the full tax amount upon the effective  
            date of such transaction.  If a merger or acquisition results  
            in the transfer of health plan responsibility for only some of  
            a health plan's countable enrollees, the full tax amount shall  
            remain the responsibility of the health plan to which that  
            full tax amount was assessed.  









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          14)Authorize DHCS to modify or adjust the methodology, tax  
            amount, taxing tier or other similar provision to the extent  
            necessary to meet the requirements of federal law or  
            regulations, obtain federal approval, or to ensure FFP is  
            available, as specified.  Specifies that any modification or  
            adjustment that would be higher than the following aggregate  
            amounts for the other enrollees and AHCSP enrollees, combined,  
            would be in conflict with this measure: 


             a)   $266,000,000 in the 2016-17 FY;


             b)   $287,000,000 in the 2017-18 FY; and, 


             c)   $309,000,000 in the 2018-19 FY.


          15)Authorize DHCS to make an adjustment that would result in  
            lowering the amounts in 15) above.  States that nothing would  
            limit the authority of DHCS to make an adjustment that does  
            not impact the amounts in 15) above.


          16)Require, if DHCS identifies that a modification or adjustment  
            may be necessary under 15) above, to consult with affected  
            health plans, to the extent practicable, to implement that  
            modification or adjustment.  Requires DHCS to notify affected  
            health plans, and the Legislature within 10 business days of  
            the modification or adjustment.


          17)Require DHCS to request approval from CMS to implement this  
            bill.  Authorize DHCS to request a waiver of the broad-based  
            and uniformity requirements, as specified.










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          18)Authorize DHCS to implement the provisions of this bill  
            outside of the administrative rulemaking process and to  
            implement this measure pursuant to provider bulletins, all  
            plan letters, or other similar instructions.  Require DHCS to  
            notify specified committees of the Legislature within 10  
            business days of such action.


          19)Establish a the gross premiums tax (GPT) rate of 0% for  
            premiums received for the provision of health insurance on or  
            after July 1, 2016, and on or before June 30, 2019.  Limits  
            the application of this GPT rate to premiums received by an  
            insurer that provides health insurance and has a corporate  
            affiliate, which is either a "health care service plan" or  
            "health plan" that meets the following requirements:


             a)   Is licensed by DMHC or is a MCP;


             b)   Has had at least one enrollee enrolled in the health  
               plan in the base year, as defined, not including  
               individuals who are enrolled in a Medicare plan, who  
               receive health care services through a health plan pursuant  
               to a subcontract from another health plan or who are  
               enrollees through the Federal Employees Health Benefits Act  
               of 1959, as specified; and,


             c)   Is subject to the MCO provider tax imposed by this bill.  
                 


          20)Define an insurer that has a corporate affiliate as a health  
            care service plan or health plan as an "insurer that is,  
            directly or indirectly, controlled by, under common control  
            with, or controls a health care service plan".










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          21)Prohibit the Insurance Commissioner from considering the  
            reduction of the GPT rate authorized by this bill in any  
            determination to impose or enforce a tax under the relevant  
            retaliatory tax provisions of the Insurance Code and the  
            Revenue and Taxation Code. 


          22)Exclude from the definition of "gross income," under the  
            Corporation Tax (CT) Law, the qualified health care service  
            plan income of a health plan that is subject to the MCO  
            provider tax.  Specifies that the income must properly accrue  
            with respect to enrollment or services that occur on or after  
            July 1, 2016, and on or before June 30, 2019.  Defines a  
            "qualified health care service plan" as a health care service  
            plan that:  a) is licensed by DMHC or is a MCP, and, b)  
            subject to the MCO provider tax imposed by this bill.


          23)Define "qualified health care service plan income" as any of  
            the following revenue associated with the operation of a  
            qualified health care service plan and required to be reported  
            to the DMHC, including the following:


             a)   Premiums (commercial);


             b)   Copayments, coordination of benefits, and subrogation;


             c)   Title XIX Medicaid;


             d)   Point-of-Service Premiums;


             e)   Risk pool revenue;










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             f)   Capitation payments;


             g)   Title XVIII Medicare;


             h)   Fee-for-service (FFS);


             i)   Interest; and,


             j)   Aggregate write-ins for other revenues, including  
               capital gains and other investment income. 


          24)Require DHCS to submit to the Franchise Tax Board (FTB), no  
            later than December 1, 2016, information regarding every  
            health care service plan that is subject to the tax, as  
            specified.  Require the information to include the corporate  
            name, address, and calendar period for which each health care  
            service plan is subject to the MCO provider tax.


          25)Exempt from the minimum franchise tax, a qualified health  
            care service plan with no income other than the excluded  
            qualified health care service plan income.


          26)Authorize the FTB to prescribe rules, guidelines, or  
            procedures necessary or appropriate to carry out the purposes  
            of the provisions relating to the gross income exclusion for  
            health care service plans.  Exempt the FTB from the  
            administrative rulemaking process.


          27)Provide Legislative intent that the FTB Legal Ruling 2006-01  
            of April 28, 2006 regarding the treatment of apportionment  
            factors attributable to income exempt from taxation shall  








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            apply to the apportionment factors attributable to the income  
            of qualified health care service plans excluded by this bill.   



          28)Sunset this measure on July 1, 2019, and as of June 30, 2020,  
            is repealed.   State that any tax and applicable interest and  
            penalties imposed under this bill continues to be due and  
            payable until the tax and any applicable interest and  
            penalties are fully paid.


          29)Provide that this bill's reduction in the GPT rate and gross  
            income exclusion shall become operative on the later of July  
            1, 2016, or the effective date of the federal approval  
            necessary for receipt of federal financial participation in  
            conjunction with the new MCO provider tax.  


          30)Provide that this bill's tax law modifications shall cease to  
            operate on the first day of the first FY beginning on or  
            after:


             a)   The date the Director of DHCS, in consultation with the  
               Director of the Department of Finance, determines that the  
               taxes have not met their goal of providing funding for  
               health care and prevention, or the state does not have the  
               federal approval necessary for receipt of FFP; or, 


             b)   The effective date of a final judicial determination  
               made by a court of appellate jurisdiction that any of the  
               tax law modifications cannot be implemented.


          SUPPORT (Verified 02/25/2016 12:49 p.m.)










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           Anthem Blue Cross
           Autism Health Insurance Project
           Barton Memorial Hospital
           Bay Area Council
           Bear Valley Community Healthcare District
           Blue Shield of California
           Brea Chamber
           California Academy of Family Physicians
           California Association of Health Facilities
           California Association of Health Plans
           California Chamber of Commerce
           California Chapter of the American College of Physicians  
            Services
           California Dental Association
           California Hospital Association
           California Medical Association
           California Orthotics and Prosthetics Association
           California Person Centered Advocacy Partnership
           California Society of Anesthesiologists
           California State Association of Counties
           Catalina Island Medical Center
           Center for Autism and Related Disorders
           Coalinga Regional Medical Center
           Community Medical Centers
           County Health Executives Association of California
           Dignity Health
          District Hospital Leadership Forum
           Eastern Plumas Health Care
           East Bay Developmental Disabilities Legislative Coalition
           Health Access California
           Health Net
           Hearing Healthcare Providers California
                                                                   Infant Development Association of California
           Jewish Home of San Francisco
           Kaweah Delta Health Care District
           Lanterman Coalition
           LA Care Health Plan
           Local Health Plans of California
           Los Angeles Area Chamber of Commerce








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           Mayers Memorial Hospital District
           Mee Memorial Hospital
           Modoc Medical Center
           Molina Healthcare of California
           Motion Picture and Television Fund Hospital
           North Orange County Chamber
           Nurse Family Partnership
           Orchard Hospital
           Palomar Health
           Planned Parenthood Affiliates of California
           Rancho Cordova Chamber of Commerce
           Regional Center of the East Bay
           San Bernardino Mountains Community Hospital District
           Seneca Healthcare District
           Sharp HealthCare
           Sonora Regional Medical Center
           Southwest California Legislative Council
           Special Needs Network, Inc.
           State Council on Developmental Disabilities
           Sutter Health
           Tahoe Forest Hospital District
           Urban Counties of California
           Western Center on Law and Poverty


          OPPOSITION (Verified 02/25/2016 12:49 p.m.)


           None on file.


          Analysis Prepared by:                                             
                          Rosielyn Pulmano / P.H. & D.S. / (916) 319-2097   
                                                                      FN:  
          0002624












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