BILL ANALYSIS �
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 792
A
AUTHOR: Bonilla
B
AMENDED: May 27, 2011
HEARING DATE: June 29, 2011
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REFERRAL: Judiciary
9
CONSULTANT:
2
Bain
SUBJECT
Health care coverage: California Health Benefit Exchange
SUMMARY
Requires, effective January 1, 2013, courts, health plans,
health insurers, employers, and the Employment Development
Department (EDD) to provide a notice of the availability of
coverage in the California Health Benefit Exchange
(Exchange), effective January 1, 2014. Requires health
plans, health insurers, and employers, for employees or
dependents who have experienced a death, loss of employment
or a reduction in hours, divorce or the loss of dependent
status that results in a loss of health insurance, to
transfer information to the Exchange to initiate an
application for enrollment in the Exchange if the
individual consents. Requires an individual electing to
decline coverage from the Exchange to elect to do so in
writing.
CHANGES TO EXISTING LAW
Existing federal law:
Requires, under the federal Patient Protection and
Affordable Care Act (PPACA) (Public Law 111-148), as
Continued---
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amended by the Health Care Education and Reconciliation Act
of 2010 (Public Law 111-152), each state, by January 1,
2014, to establish an American Health Benefit Exchange
(AHBE) that makes qualified health plans available to
qualified individuals and qualified employers. If a state
does not establish an AHBE, the federal government
administers the AHBE. Federal law establishes requirements
for the AHBE, for health plans participating in the AHBE,
and defines who is eligible to receive coverage in the
AHBE. Among other duties, the AHBE is required to inform
individuals of eligibility requirements for the Medicaid
program (Medi-Cal in California), the Children's Health
Insurance Program (the Healthy Families Program, or HFP, in
California), or any applicable state or local public
program. The AHBE is required if, through screening of the
application, the AHBE determines that such individuals are
eligible for any such program, to enroll such individuals
in such program.
Allows through PPACA, effective January 1, 2014, eligible
individual taxpayers whose household income equals or
exceeds 100 percent, but does not exceed 400 percent of the
federal poverty level (FPL), an advanceable and refundable
tax credit for a percentage of the cost of premiums for
coverage under a qualified health plan offered in the
Exchange. PPACA also requires a reduction in cost-sharing
for individuals with incomes below 250 percent of the FPL,
and a lower maximum limit on out-of-pocket expenses for
individuals whose incomes are between 100 percent and 400
percent of the FPL. Legal immigrants with household
incomes less than 100 percent of the FPL who are ineligible
for Medicaid because of their immigration status are also
eligible for the premium tax credit and the cost-sharing
reductions.
Requires, through PPACA, numerous changes to Medicaid,
including expanding eligibility to adults without minor
children with incomes equal to or less than 133 percent of
the FPL, disregarding (or not counting) an additional five
percent in income (making the Medicaid income eligibility
effectively 138 percent of the FPL), eliminating the asset
test and switching to a new method for calculating income
known as modified adjusted gross income (MAGI) for certain
populations.
Requires, through PPACA, each individual (with specified
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exceptions), and any dependent of the individual, to
maintain minimum essential coverage, provides exemptions
from the individual mandate (such as for affordability,
hardship, and for individuals with incomes below the income
tax filing threshold), and establishes penalties for
violations.
Existing state law:
Requires health plans and health insurers that provide
coverage to small employers with 2 to 19 eligible employees
to offer continuation coverage to a qualified beneficiary
(QB) upon a qualifying event without evidence of
insurability. Requires the QB, upon election, to be able
to continue his or her coverage under the group benefit
plan. This body of law is known as Cal-COBRA.
Requires employers, employee associations, or other
entities to notify its current and former employees or
members and dependents of federal COBRA continuation
coverage (which requires continuation coverage be offered
to QB experiencing a qualifying event in firms with 20 or
more employees) and state law conversion coverage options.
Regulates the distribution of unemployment compensation or
disability benefits by the Employment Development
Department (EDD).
Sets forth, under the Family Code, procedures related to a
petition for dissolution of marriage, nullity of marriage,
or legal separation, or a petition for adoption.
Establishes the Exchange in state government, and specifies
the duties and authority of the Exchange. Requires the
Exchange be governed by a board that includes the Secretary
of the Health and Human Services Agency and four members
with specified expertise who are appointed by the Governor
and the Legislature.
This bill:
Notice of availability of coverage through Exchange and
Medi-Cal
Requires a notice to be provided to individuals that they
may be eligible for reduced-cost coverage through the
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Exchange and for no-cost coverage through Medi-Cal if the
individual is low income, in the following circumstances:
� By the court, on and after January 1, 2013, upon the
filing of a petition for dissolution of marriage, nullity
of marriage, or legal separation, to the petitioner and
the respondent.
� By the court, on and after January 1, 2013, upon the
filing of a petition for adoption, to the petitioner.
� By the Employment Development Department (EDD), upon the
filing of a new claim for disability benefits, to the
claimant.
Health plans and insurers, employers, and Exchange coverage
Requires, on and after January 1, 2014, group health plans,
health insurers, employers, employee associations, or other
entities otherwise providing hospital, surgical or major
medical benefits to its employees or members, to provide
notification to employees, members, former employees,
dependents, or former dependents that because the
individual is no longer enrolled in employer coverage:
� That an application for coverage through the Exchange has
been made;
� That the individual is not required to accept coverage
from the Exchange, and,
� That if the individual is low income, he or she may
qualify for Medi-Cal.
Requires, to decline health care coverage from the
Exchange, individuals to notify the Exchange in writing
within 63 calendar days of the date of termination of group
coverage.
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Transfer of information to the Exchange by health plans,
insurers, and employers
Requires employers, employee associations, other entities
providing medical benefits, health plans, and health
insurers to transfer information to the Exchange in order
to initiate an application for enrollment in the Exchange
for a former employee or former dependent of an employee.
Requires these entities to provide to the Exchange
information regarding the former employee and any
dependents covered, including the name or names, most
recent address, and any other information that is in the
possession of the these entities that the Exchange may
require, in a manner to be prescribed by the Exchange.
Requires the information to be provided in a manner
consistent with a specified provision of the federal PPACA
dealing with procedures for determining Exchange
eligibility.
Requires these entities to obtain the consent of the
enrollee to provide the minimum necessary information to
the Exchange in the event that the individual or dependent
ceases to be enrolled in coverage. Prohibits these
entities from transferring any information regarding the
individual to the Exchange if the individual does not
provide his or her consent.
Requires the provision of this information to initiate an
application for enrollment in coverage through the
Exchange.
Requires individual health plans and insurers to provide to
the Exchange information regarding previously covered
individuals and any dependents that chose not to renew
individual coverage. Requires the information provided to
include the name or names, most recent address, and any
other information that is in the possession of the plan and
that the Exchange may require in a manner to be prescribed
by the Exchange. Requires the information to be provided
in a manner consistent with a specified provision of PPACA
dealing with procedures for determining eligibility for the
Exchange.
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Notice requirement for individuals leaving group coverage
Requires, from January 1, 2012, until December 31, 2013,
group health plans and group health plans, employers,
employee associations and other entities providing
hospital, medical, surgical or major medical benefits to
its employees or members, to provide a notification to
employees, members, former employees, spouses, or former
spouses to examine their coverage options before declining
coverage, that individual policies require a review of an
individual's medical history that can result in a higher
premium or denial of coverage, and that children under 19
years of age cannot be denied individual coverage based on
medical history, but may pay a higher premium depending on
medical history.
EDD requirements
Requires EDD, on and after January 1, 2014, when an
individual, files a new claim for unemployment
compensation, to provide to the Exchange the name, address,
and any other identifying information that is in the
possession of EDD as the Exchange may require, in a manner
to be prescribed by the Exchange. Requires the Exchange to
seek approval from the federal Department of Health and
Human Services (DHHS) to transfer the minimum information
necessary to initiate an application for enrollment in the
Exchange. Requires the provision of this information to
initiate an application for enrollment in the Exchange.
Requires a disclosure to be provided to such individuals
that an application for coverage through the Exchange has
been made, that the individual is not required to accept
coverage from the Exchange, and that coverage through the
Exchange will be based on income.
Requires an individual, to decline health care coverage
through the Exchange, to elect to do so by notifying the
Exchange in writing.
Requires EDD, on and after January 1, 2014, when an
individual files a new claim for unemployment compensation,
to provide to the Exchange the name, address, and any other
identifying information that is in the possession of EDD as
the Exchange may require, in a manner to be prescribed by
the Exchange. Requires the Exchange to seek approval from
DHHS to transfer the minimum information necessary to
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initiate an application for enrollment through the
Exchange. Requires the provision of this information to
initiate an application for enrollment in coverage through
the Exchange.
Requires EDD to provide notice to individuals filing a new
claim for unemployment compensation that an application for
health care coverage through the Exchange has been made for
them, that they are not required to accept coverage, and
that Exchange coverage will be based on their income.
Requires an individual, to decline health care coverage
through the Exchange, to do so by notifying the Exchange in
writing.
Requires the above-described EDD provisions to be
consistent with federal guidance and to be operative only
to the extent that it is funded out of non-General Fund
moneys.
Requires EDD, when an individual files a new claim for
disability benefits, to provide a notice that individuals
can obtain coverage through the Exchange beginning in 2014,
and what an individual pays for coverage will depend on his
or her income.
FISCAL IMPACT
According to the Assembly Appropriations Committee:
1)Estimated costs in the range of $800,000 to $3 million
annually (special fund) to EDD to provide notifications,
depending upon the number of individuals seeking
unemployment benefits. Unknown, potentially significant
state information technology costs (special fund) to
transfer data from EDD to the Exchange. It is unknown
whether federal grant funding available for Exchange
activities would be available for this purpose.
2)Minor, absorbable costs to the family court system to
provide notifications.
3)If screening and enrollment is conducted upon provision
of information about potential enrollees, there could be
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significant state screening and enrollment costs to the
Exchange and/or Medi-Cal that would otherwise not occur,
in the range of millions to tens of millions of dollars
annually. Potentially significant state Medi-Cal costs,
if more individuals enroll in Medi-Cal more quickly than
would otherwise occur. If individuals are found to be
eligible for Medi-Cal under existing eligibility rules,
the cost associated with these individuals will be funded
50 percent through the General Fund. Medi-Cal costs for
newly eligible individuals are 100 percent federally
funded through 2016.
4)Reduced cost pressure to counties to fund otherwise
uncompensated care, to the extent this bill results in
more individuals enrolled more quickly into comprehensive
health care coverage.
BACKGROUND AND DISCUSSION
According to the author, in 2014 and thereafter, a
component of the federal PPACA institutes an individual
mandate provision, which requires everyone to have health
insurance. The author states that this bill helps ensure
that Californians comply with the individual mandate even
when they are faced with life-changing situations, such as
filing for unemployment, divorce, adoption, and loss of
employment-based coverage. The author states this bill
ensures the design of the Exchange and redesign of Medi-Cal
take into account the need to serve the short-term
uninsured as well as provide long-term coverage. According
to the author, this bill will ensure Californians are
provided notices and that they are pre-enrolled into either
the Exchange or Medi-Cal. The author states this bill is a
new idea that has not been done in any state, and builds
upon the current COBRA law by requiring notification of
continued coverage options. The author concludes that this
bill attempts to address future problems by ensuring
seamless transition for individuals who go through
life-changing situations. The author notes that the
uninsured rate is a problem that continues to grow, but
that in 2014, losing coverage because an individual lost
his or her job or got divorced will no longer mean being
uninsured.
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Federal health care reform and the Exchange
Federal health care reform makes numerous changes to reduce
the number of uninsured Americans. According to estimates
in a recent study in the health policy journal Health
Affairs by Peter Long and Jonathan Gruber, PPACA will
provide health insurance for an additional 3.4 million
people in California in 2016. The authors state this will
mean that nearly 96 percent of documented residents of
California under age 65 will be insured. The authors
estimate enrollment in Medi-Cal is expected to increase by
1.7 million people, while 4.0 million people are expected
to enroll in the state's Exchange. Employer-sponsored
insurance and spending on health insurance will decline
slightly. The authors conclude that low-income households
will experience substantial financial benefits, but
families at the highest income levels will pay more.
Related legislation
AB 43 (Monning) would require DHCS, by January 1, 2014, to
establish eligibility for Medi-Cal benefits for any person
who meets the requirements of a new Medicaid eligibility
category added by PPACA, in effect expanding Medi-Cal
coverage to persons with income that does not exceed 133
percent of the FPL. AB 43 is on the inactive file on the
Assembly Floor.
AB 714 (Atkins) would establish notification requirements
to individuals who are enrolled in, or who cease to be
enrolled in, publicly funded state health care programs,
would require an application for coverage to be made on
their behalf through the Exchange, and would allow
individuals to decline health care coverage in a manner to
be prescribed by the Exchange. SB 714 is scheduled to be
heard in the Senate Health Committee on June 29, 2011 and
is double-referred to the Senate Judiciary Committee.
AB 1296 (Bonilla) would enact the Health Care Eligibility,
Enrollment, and Retention Act and would require, by January
1, 2012, the California Health and Human Services Agency,
in consultation with DHCS, Managed Risk Medical Insurance
Board, the Exchange, counties, health care services plans,
consumer advocates, and other stakeholders to undertake a
planning process to develop plans and procedures to
implement PPACA related to eligibility, enrollment, and
retention with regard to public health coverage programs,
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and would make various changes to eligibility processing.
AB 1296 is scheduled to be heard in the Senate Health
Committee on July 6, 2011.
Prior legislation
SB 900 (Alquist), Chapter 659, Statutes of 2010,
establishes the Exchange as an independent public entity
within state government, and requires the Exchange to be
governed by a board composed of the Secretary of California
Health and Human Services Agency, or his or her designee,
and four other members appointed by the Governor and the
Legislature who meet specified criteria.
AB 1602 (John A. P�rez), Chapter 655, Statutes of 2010,
specifies the powers and duties of the Exchange relative to
determining eligibility for enrollment in the Exchange and
arranging for coverage under qualified health plans,
requires the Exchange to provide health plan products in
all five of the federal benefit levels (platinum, gold,
silver, bronze and catastrophic), requires health plans
participating in the Exchange to sell at least one product
in all five benefit levels in the Exchange, requires health
plans participating in the Exchange to sell their Exchange
products outside of the Exchange, and requires health plans
that do not participate in the Exchange to sell at least
one standardized product designated by the Exchange in each
of the four levels of coverage, if the Exchange elects to
standardize products.
Arguments in support
This bill is sponsored by Health Access California (HAC),
which writes that this bill would create mechanisms to
maximize enrollment in coverage of those who face life
changes such as loss of a job or loss of dependent coverage
due to loss of a spouse. HAC states that any Californian
can become uninsured because of a change in life
circumstance (such as aging-off coverage, losing or
switching a job, divorce, death or moving), yet state
policy does relatively little to help people stay on
coverage other than to require the provision of a notice of
their ability to continue coverage. HAC states that, in
2014, every one of these individuals is eligible for
coverage either in the Exchange or Medi-Cal, yet no
mechanism exists to connect these individuals to coverage.
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HAC states that less than half the uninsured are uninsured
for less than a year, almost a quarter of the uninsured for
are uninsured one to two years, and the remaining third are
uninsured for more than two years. The design of the
Exchange and redesign of Medi-Cal/Healthy Families needs to
into take account the need to serve the short-term
uninsured as well as providing long-term coverage in order
to keep Californians covered and healthy.
HAC states this bill would connect to people to the
Exchange by providing notice in 2012 and 2013 that low-cost
or no-cost coverage will be available through the Exchange
and Medi-Cal effective 2014. Beginning in January 1, 2014,
this bill would require insurers and health plans to
initiate enrollment into the Exchange as well as COBRA for
COBRA-qualifying events, including loss of employment-based
coverage, loss of coverage due to loss of a spouse or
parent and other COBRA qualifying events. HAC concludes
that in 2014, there is no reason why losing one's job or
getting divorced should mean losing health coverage as
millions of Californians will be eligible for coverage
through the Exchange or Medi-Cal, and this bill will help
those Californians get coverage when they need it and when
the law requires it.
Arguments in opposition
This bill is opposed by the California Association of
Health Plans and the Association of California Life and
Health Insurance Companies (ACLHIC). ACLHIC states that
this bill requires an insurer to obtain the consent of its
insureds to share their information with the Exchange, yet
provides no direction as to how to meet that obligation if
the individual is simply nonresponsive. ACLHIC states
that, in a day of heightened privacy concerns, many
individuals may be reluctant to give consent to share their
personal information, and ACLHIC is concerned about
potential liability to the insurer that is required to
obtain and maintain this information. ACLHIC states this
bill should be amended to provide protection to the insurer
that forwards such information to the Exchange in
accordance with the requirements of the bill. ACLHIC also
argues this bill requires insurers to send multiple and
duplicative notices to an insured of their right to enroll
in the Exchange with every change in the insured's
coverage, and that this bill should be amended to include
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its required notice with Cal COBRA notices in the manner
that they are currently required to be sent to insured
individuals. ACLHIC states this would be consistent with
all other notices of coverage rights, and would not only be
cost effective, but less confusing to the insured.
PRIOR ACTIONS
Assembly Health 13- 6
Assembly Judiciary 7- 2
Assembly Appropriations11- 6
Assembly Floor 50- 26
COMMENTS
1. Coverage opt in. Under current law, the Exchange is
required to inform individuals of the eligibility
requirements for the Exchange, Medi-Cal, Healthy Families,
or any applicable state or local public program. The
Exchange is required, through screening of the application,
if the Exchange determines that such individuals are
eligible for any such program, to enroll such individuals
in such program.
This bill requires health plans, health insurers, employers
and EDD, beginning July 1, 2013, to provide an additional
notice that an application for coverage through the
Exchange is being made for the individual. This bill
requires an individual to have the opportunity to decline
health care coverage by notifying the Exchange in writing.
In effect, people are "opted in" to applying for coverage
through the Exchange but allowed to decline coverage. The
advantage of this method is it will increase the likelihood
that people will have continuity of care through continuous
coverage, reduce gaps in coverage, and increase the
likelihood of compliance with the individual mandate
requirement in PPACA.
However, individuals may wish to affirmatively enroll
(rather than being opted in and having to decline coverage)
because the individual has become Medicare-eligible, or has
obtained job-based coverage through a new employer. For
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individuals moving to coverage in the Exchange that they
have to pay out-of-pocket for, the Exchange would have to
determine whether individuals are enrolled in coverage in
advance or after paying premiums, and would have to develop
a methodology to enroll individuals in a particular health
plan if they are eligible for coverage in the Exchange (the
Exchange has to offer at least four tiers of products).
2. Proposed author's amendments
a) Author's amendments to mirror Cal-COBRA
notification requirements. The author is proposing to
amend this bill to require one of the notices that
health plans and health insurers providing group
coverage must furnish, and this notice requirement
would apply in a manner similar to the Cal-COBRA
notification requirement in existing law. Cal-COBRA
requires health plans and insurers that provide
coverage under a group benefit plan to an employer
with 2 to 19 eligible employees, to offer continuation
coverage to a qualified beneficiary (QB), upon a
qualifying event, without evidence of insurability
(meaning the individual cannot be turned down for
coverage). Existing state law defines, for purposes
of eligibility for Cal-COBRA, a "qualifying event" as
any of the following events that would result in a
loss of group coverage by a QB if the person did not
elect Cal-COBRA coverage:
� The death of the covered employee;
� The termination of employment or reduction in
hours of the covered employee's employment, except
that termination for gross misconduct does not
constitute a qualifying event;
� The divorce or legal separation of the covered
employee from the covered employee's spouse;
� The loss of dependent status by a dependent
enrolled in the group benefit plan; and
� With respect to a covered dependent only, the
covered employee's entitlement to benefits under
Medicare.
Under the author's proposed amendments, health plans
and insurers covering groups (not limited to
businesses with 2 to 19 employees as in Cal-COBRA)
would have to provide this notice to QBs who
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experience a qualifying event. In addition, this bill
would require the notice to be provided if a QB is
terminated for gross misconduct because the individual
mandate would apply to these individuals unless they
were otherwise exempt under federal law.
a) Author's amendments to revise other notices. The
author is proposing amendments to revise the other two
notices required by this bill intended to make the
notices clearer and more understandable. The first
notice, required to be provided beginning January 1,
2013, informs individuals that they may obtain
coverage through the Exchange effective January 1,
2014. The author's proposed amendments delete the
specific reference to no-cost coverage through
Medi-Cal, and shorten the notice. The second notice
tells individuals who are no longer enrolled in
employer coverage that an application for coverage has
been made for them through the Exchange. The
amendments reword the notice, including telling
individuals that they will be contacted by the
Exchange to complete the application. These changes
are intended to make the notices clearer and more
understandable.
b) Author's amendment to allow the wording of
statutorily worded notices to be changed. This bill
places in statute the notices that are to be provided
to individuals. Existing law, as enacted by AB 1540
(Committee on Health), Chapter 298, Statutes of 2011,
among several provisions, gives the director of the
Department of Managed Health Care (DMHC) the authority
to adopt a regulation to modify the wording of any
notice required by the Knox-Keene Act for purposes of
clarity, readability, and accuracy, except that a
modification cannot change the substantive meaning of
the notice. The author is proposing amendments to
permit DMHC, the California Department of Insurance
and EDD the authority to modify the wording of the
required notice for clarity, readability, and
accuracy, except that corrections to the website and
telephone can be done through guidance without the
adoption of a regulation.
c) Author's amendment on privacy. This bill requires
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health plans and health insurers to provide the name,
address and other information that is in the
possession of the plan/insurer that the Exchange may
require to determine eligibility, facilitate
enrollment in coverage, and maximize continuity of
care. Because providing this information may involve
transferring an individual's medical information, the
author is adding language to require that the
furnishing of information be consistent with other
state and federal medical privacy laws.
3. Suggested technical or clarifying drafting amendments.
a) This bill requires a notice to be provided to
individuals that they may be eligible for reduced-cost
coverage through the Exchange and for no-cost coverage
through Medi-Cal when an individual files a new claim
for disability benefits. This requirement would take
effect upon the effective date of the bill, while this
same required notice would take effect January 1, 2013
in other parts of the bill. Committee staff
recommends amendments to make the dates consistent
across the provisions of this bill.
b) The provisions of this bill placing requirements on
health plans and health insurers need to clarify which
provisions place requirements on group contracts and
policies versus individual contracts and policies, and
to clarify that the provisions affecting health plans
and insurers in the individual market involve
individuals and not former employees and dependents of
those former employees.
c) This bill requires health plans and insurers to
obtain the consent of enrollees before transferring
information to the Exchange. Committee staff
recommends a clarifying amendment that the consent be
provided in writing.
d) The provisions of this bill requiring EDD to
provide the Exchange with information on individuals
who file claims for unemployment compensation do not
require the consent of the individual in the same way
that the provisions of the bill requiring health plans
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and health insurers to furnish this information.
Committee staff recommends an amendment to require an
individual's consent before this information is
forwarded from EDD to the Exchange.
e) Existing law requires group health plans and group
health insures providing Cal-COBRA coverage to provide
a statutory notice advising individuals to consider
their options before declining Cal-COBRA coverage
because companies selling individual health coverage
require a review of the individual's medical history
that could result in a higher premium or the denial of
coverage. This bill has a new but similar notice
plans and insurers would be required to use from
January 1, 2012 until December 31, 2013, that it is
updated to reflect several changes made by federal
health care reform. This disclosure applies to health
plans and insurers providing group coverage, and is
not limited to plans and insurers offering Cal-COBRA
coverage. Committee staff recommends an amendment to
delete the current notice requirements in existing
law.
4. Double referral. Because this bill is double referred,
any amendments will need to be adopted in the Senate
Judiciary Committee.
POSITIONS
Support: Health Access California (sponsor)
100% Campaign
American Federation of State, County and
Municipal Employees
California Labor Federation
California Medical Association
California Pan-Ethnic Health Network
California Primary Care Association
California Rural Legal Assistance Foundation
Congress of California Seniors
Consumers Union
Contra Costa County Board of Supervisors
Having Our Say
National Association of Social Workers,
California Chapter
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Service Employees International Union
Unitarian Universalist Legislative Ministry
Action Network-California
United Nurses Associations of California/Union of
Health Care Professionals
Western Center on Law & Poverty
Oppose:Association of California Life and Health Insurance
Companies
California Association of Health Plans
California Association of Health Underwriters
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