BILL ANALYSIS �
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 922
A
AUTHOR: Monning
B
AMENDED: September 2, 2011
HEARING DATE: September 6, 2011
9
CONSULTANT:
2
Chan-Sawin
2
PURSUANT TO S.R. 29.10
SUBJECT
Office of Patient Advocate
SUMMARY
Transfers the Department of Managed Health Care (DMHC) from
the California Business, Transportation and Housing Agency
(BTH) to the California Health and Human Services Agency
(CHHS). Transfers the Office of the Patient Advocate (OPA)
from DMHC to CHHS effective July 1, 2012. Revises OPA's
current purpose and duties, and assigns new duties
consistent with requirements of the Patient Protection and
Affordable Care Act (PPACA).
CHANGES TO EXISTING LAW
Existing federal law:
Requires, under PPACA (Public Law 111-148), as 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 that makes
qualified health insurance products available to qualified
Continued---
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individuals and qualified employers. If a state does not
establish an Exchange, the federal government administers
the Exchange.
Requires the federal Secretary of Health and Human Services
Agency to award grants to states to enable states (or the
exchanges operating in such states) to establish, expand,
or provide support for offices of health insurance consumer
assistance or health insurance ombudsman programs.
Establishes criteria for states to meet in order to receive
a consumer assistance grant under the PPACA, and requires
the ombudsman to perform certain activities, including
assisting with the filing of complaints and appeals,
educating consumers on their rights and responsibilities,
assisting consumers with enrollment, and resolving problems
in obtaining premium tax credits made available by PPACA.
As a condition of receiving a federal ombudsman grant, an
office of health insurance consumer assistance or ombudsman
program is required to collect and report data to the
Secretary of HHS on the types of problems and inquiries
encountered by consumers.
Existing state law:
Provides for the regulation of health plans by DMHC under
the Knox-Keene Health Care Service Plan Act of 1975
(Knox-Keene Act), and for the regulation of health insurers
by the California Department of Insurance (CDI), under
provisions of the Insurance Code (collectively referred to
as regulators).
Requires DMHC to establish and maintain a toll-free
telephone number for the purpose of receiving complaints
regarding health plans regulated by DMHC.
Establishes OPA within DMHC to represent the interests of
enrollees served by health plans regulated by DMHC and
establishes, as the goal of OPA, to help enrollees secure
health care services to which they are entitled under the
laws administered by DMHC. Requires OPA to compile an
annual publication, to be made available on DMHC's website,
of a quality-of-care report card, including, but not
limited to, health plans.
Requires the Insurance Commissioner to establish a program
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to investigate complaints, respond to inquiries, and to
bring enforcement actions regarding health insurers.
Requires the program to include, but not be limited to, a
toll-free telephone number dedicated to the handling of
complaints and inquiries, public service announcements to
inform consumers of the toll-free telephone number,
information as to how to register a complaint or make an
inquiry to the CDI, and a simple, standardized complaint
form designed to assure that complaints will be properly
registered and tracked.
Establishes the Medi-Cal program, which is administered by
the State Department of Health Care Services (DHCS), under
which qualified low-income individuals receive health care
services.
Authorizes DHCS, for purposes of the Medi-Cal Program, on a
regional pilot project basis, to the extent authorized by
law, to enter into contracts with one or more nonprofit
organizations to perform the functions of the DHCS' Office
of the Ombudsman.
Establishes and specifies the duties and authority the
California Health Benefit Exchange (Exchange) within state
government in a manner that is consistent with PPACA.
Establishes the Managed Care Fund and the Insurance Fund,
for the purposes of funding the regulatory activities of
DMHC and CDI, respectively.
This bill:
Transfers DMHC from BTH to CHHS effective January 1, 2012.
Also transfers OPA from DMHC to CHHS effective July 1,
2012.
Delays the operative date of provisions affecting insureds
covered by CDI-regulated health insurers, and individuals
who receive or are eligible for coverage under the Medi-Cal
program, the Exchange, the Healthy Families Program, or any
other county or state health care program until January 1,
2013. Further specifies that, for the period between July
1, 2012, and January 1, 2013, OPA will continue with any
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duties, responsibilities or activities in place as of July
1, 2011, in reference to those insureds and individuals.
Specifies that the duties of the OPA include, but are not
limited to:
Developing, in consultation with DMHC, CDI, the
Managed Risk Medical Insurance Board, DHCS, and
Exchange, consumer educational and information guides,
as specified.
Compiling an annual quality of care report card, as
specified.
States that, because of the enactment of PPACA and the
implementation of various reform provisions by January 1,
2014, the Legislature recognizes that it is appropriate to
transfer and confer on OPA new responsibilities, including
assisting consumers in obtaining coverage and health care
through health coverage that is regulated by multiple
regulators, as specified.
Beginning January 1, 2013, makes the following additional
changes to the duties to OPA:
Receiving and responding to all inquiries,
complaints and requests for assistance from
individuals concerning health coverage available in
California;
Providing and assisting in the provision of,
outreach and education about coverage options, as
specified;
Coordinating and working with other government and
nongovernment patient assistance programs and health
care ombudsman programs.
Rendering assistance to, and advocating on behalf
of, consumers with problems related to health care
services, including care and service problems and
claims or payment problems.
Referring consumers to the appropriate regulator
for filing complaints, grievances, or claims or
payment problems.
Directing OPA to provide assistance regarding
coverage options if the consumer is not eligible for
coverage, as specified.
Requiring OPA to ensure that either OPA, or a state
agency contracting with OPA, provides such services.
Requiring OPA to operate a website, other social
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media, and up-to-date communication systems to provide
public information regarding consumer assistance
programs.
Beginning January 1, 2013, requires OPA to track and
analyze data, as specified, on problems and complaints by,
and questions from, consumers about health care coverage
for the purpose of providing public information about
problems faced and information needed by consumers in
obtaining coverage and care.
Requires DMHC, DHCS, CDI, MRMIB, the Exchange, and other
public programs to provide OPA with aggregate data
concerning consumer complaints and grievances. Removes
the provision allowing OPA to access to records of CDI, and
sunsets OPA's access of DMHC records on January 1, 2013.
Requires OPA to collect and report data to the United
States Secretary of Health and Human Services on complaints
and consumer assistance as required to comply with
requirements of the PPACA.
Allows OPA to contract with community-based consumer
assistance organizations to assist in any or all of certain
specified duties of OPA, in accordance with existing state
laws governing personal services contracts. Allows OPA to
provide grants to such organizations for the provision of a
portion of OPA's duties, as specified.
Requires OPA to adopt standards for the organizations with
which it contracts to ensure compliance with privacy and
confidentiality laws, as specified. Also require OPA to
conduct privacy trainings as necessary, and regularly
verify that the organizations have measures in place to
ensure compliance with this provision.
Requires OPA to develop the following:
A procedure for referring complaints and grievances
to the appropriate regulator or coverage program for
resolution by the relevant regulator or public
program.
A protocol or procedure for reporting to the
appropriate regulator and health coverage program
regarding complaints and grievances relevant to that
agency that OPA received and was able to resolve
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without further action or referral.
Creates the OPA Trust Fund in the State Treasury, and upon
appropriation by the Legislature, requires moneys in the
fund to be made available for implementing the provisions
of this bill. Requires funding for the actual and
necessary expenses of the OPA to be provided, subject to
appropriation by the Legislature, from the Managed Care
Fund and the Insurance Fund, as specified.
Permits, rather than requires, OPA to apply to the United
States Secretary of Health and Human Services for a grant
made available under the federal health reform law, and to
the extent permitted by federal law, to seek federal
funding for assisting beneficiaries of the Medi-Cal
Program.
Makes other technical and conforming changes.
FISCAL IMPACT
According to the Senate Appropriations Committee analysis:
Fiscal Impact (in thousands)
Major Provisions 2011-12 2012-13 2013-14 Fund
OPA expansion Unknown, potentially in the hundredsSpecial*
and shift of thousands of dollars
OPA additional duties and likely in the millions of
dollars annually Special*
ongoing administration commencing January 1, 2013
DMHC data reporting $0 about $250 $500 Special**
CDI data reporting $0 $1,100 $550
Special***
DHCS, MRMIB, and Uknown, potentially significant
General/****
Exchange data reporting commencing January 1,
2013Federal/
Special
*Office of the Patient Advocate Trust Fund
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**Managed Care Fund
***Insurance Fund
****MRMIB costs shared 35 percent General Fund; 65 percent
federal funds; Medi-Cal costs shared 50 percent General Fund, 50
percent federal funds; Exchange costs paid from the California
Health Trust Fund, to the extent federal financial participation
is available.
BACKGROUND AND DISCUSSION
According to the author, California currently has a
fragmented system for consumer assistance with health care
coverage complaints. There are eight governmental entities
and several private, non-profit entities that provide a
number of services for assistance with public and private
health care coverage. These services include advice on
coverage options, education about how to navigate the
system, assistance with complaints and grievances,
assistance in choosing a health plan and finding a
provider. These entities also respond to complaints about,
among other things, eligibility, coverage of services, and
timely access to providers.
There has been extensive media coverage regarding PPACA.
However, the provisions are complex and have varying
effective dates. The author believes that it is imperative
that Californians be provided with a single source of
correct and current information. In addition to
information about coverage options, California health care
consumers need help when they have problems with their
health coverage including care denials, coverage
terminations and billing problems. Given California's
diverse population, assistance needs to be provided in
multiple languages. In the present fiscal crisis climate,
there are no new state funds that could be used for this
purpose. California must consolidate and coordinate
existing consumer assistance programs and combine funding
sources for more efficient use of funds.
According to the author, AB 922 also transfers OPA from BTH
to CHHS to better position California to receive federal
grants and to provide for much needed clear and
understandable consumer information and assistance by
expanding and strengthening current programs operating at
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the local level. Data about consumers' problems would be
collected and compiled, allowing an important window into
the types of health care problems Californians face.
The bill also moves DMHC from BTH to CHHS. According to
the author, CHHS is focused on consumers and implementation
of PPACA (along with other aspects of healthcare delivery
and regulation), rather than BTH, which has a different
culture and focus, and has no expertise in federal health
care and its requirements. In addition, the Secretary of
CHHS should be responsible for overseeing the state's
progress in implementation of federal health reform,
including the provisions that impact DMHC. The author
argues that PPACA implementation necessitates collaboration
and a robust federal-state relationship that already exists
in other areas under CHHS (Medi-Cal, CalWORKs, SNAP, etc.).
Furthermore, since OPA's inception, OPA and DMHC have been
intertwined, with much of OPA's focus being on the vast
number of enrollees within DMHC's purview. The author
believes that moving one alone may raise coordination
issues, and that logistically, both should be moved.
Patient assistance provisions in federal health reform
On March 23, 2010, President Obama signed PPACA. It is
estimated that 4.7 million California children and adults
who were uninsured during some part of 2009 will be
eligible for health coverage under PPACA. Among other
provisions, the new law makes statutory changes affecting
the regulation of and payment for certain types of private
health insurance. The law also significantly expands
health care coverage to currently uninsured individuals
through public program expansions, a mandate to purchase
coverage, a temporary high-risk pool program, and by
requiring guaranteed issue of coverage. It is anticipated
that millions of currently uninsured persons in California
will obtain coverage under the provisions of PPACA.
PPACA also contains provisions to provide funding for
states to establish health insurance consumer assistance
programs. In order to be eligible to receive a grant,
states are required to designate an independent office of
health insurance consumer assistance that, directly or in
coordination with state health insurance regulators and
consumer assistance organizations, receives and responds to
inquiries and complaints concerning federal and state
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health insurance requirements. DMHC, in partnership with
the OPA, has been awarded $3.4 million to:
Develop and promote a coordinated,
consumer-friendly website and corresponding toll-free
number that consumers can call with questions about
health care coverage, and to receive assistance with
the filing of complaints and appeals.
Conduct a statewide media campaign to educate
consumers about their rights and responsibilities, and
to provide assistance with enrollment in group health
plans or health insurance coverage.
Evaluate the effectiveness of the initiatives, and
track and quantify consumer problems and inquiries,
for reporting to state and federal policymakers.
Implementation of the PPACA will lead to millions more
Californians enrolled in coverage, including expansions of
public programs. Consumers will also have expanded choices
of coverage and different options to use, should they lose
a source of job-based coverage, have a child, divorce, or
have an increase in income. All of these changes will
affect eligibility, making it all the more necessary to
establish one entity to help them with their health
coverage.
California's current system of consumer assistance
California has a number of entities that provide services
for assistance with public and private health care
coverage, including:
Government Entities: HMO HelpLine, Medi-Cal
Managed Care (MCMC) Ombudsman, CDI Consumer Hotline
(applies to all types of insurance) Department of
Labor, the Employee Benefits Security Administration
(EBSA), 1-800-Medicare, county welfare offices, the
OPA, and the Exchange (forthcoming);
Nonprofit Entities: Health Consumer Alliance
(HCA), Health Insurance Counseling and Advocacy
Program (HICAP), and Certified Application Assistors
(CAAs).
These services include advice on coverage options,
education about how to navigate the system, assistance with
complaints and grievances, and assistance in choosing a
carrier and finding a provider. These entities also
respond to complaints about, among other things,
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eligibility, coverage of services, and timely access to
providers.
Community-based consumer assistance programs
There are a number of community-based organizations in
California that provide assistance to health care
consumers. The HCA helps low-income Californians in 13
counties. Each health consumer center runs a hotline to
assist consumers by telephone and provides in-person visits
as well as outstationed services in hospitals, courts, or
farm fields. Consumers can also email an office for
assistance. The HCA helps consumers regardless of their
type of coverage.
HICAP provides free and objective information and
counseling about Medicare. Volunteer counselors help
Medicare beneficiaries understand their rights and health
care options. HICAP also offers free educational
presentations to groups of Medicare beneficiaries, their
families and/or providers on a variety of Medicare and
other health insurance-related topics.
CAAs help families complete and submit the joint
HFP/Medi-Cal application. These community-based entities
play a crucial role in providing information to thousands
of Californians (primarily low income, many with LEP) about
health coverage options and helping them to get enrolled
and properly use their insurance coverage. CAAs are
trained and certified by MRMIB to help Californians
understand their coverage options and enroll in health
coverage. CAAs are often bilingual, come from the
communities they serve, and can be employed by Federally
Qualified Health Centers, Rural Health Centers, regional
nonprofit organizations, and schools, etc. Throughout
California, these entities have developed strong and
trusting relationships within their communities and are
valued by local families needing information about health
coverage.
Related legislation
SB 615 (Calderon) requires, on and after January 1, 2013,
solicitors and solicitor firms, and principal persons
engaged in the supervision of solicitation for health care
service plan contracts to complete specified training, and
requires the Insurance Commissioner's (Commissioner)
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curriculum board to make recommendations to the
Commissioner for the instruction of accident and health
agents about the requirements imposed by PPACA. Pending
hearing in Assembly Health Committee.
AB 736 (Calderon), among other things, would have
authorized a person licensed to transact accident and
health insurance to be an agent, a broker, or both, and
would have removed the restriction that a life licensee
only be a life agent. Held on suspense in Assembly
Appropriations Committee.
Prior legislation
SB 900 (Alquist), Chapter 659, Statutes of 2010,
establishes the California Health Benefit Exchange as an
independent public entity within state government.
Requires the Exchange to be governed by a board composed of
the Secretary of California Health and Human Services, or
his or her designee, and four other members appointed by
the Governor and the Legislature who meet specified
criteria.
AB 1602 (J. Perez), 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, and to sell
their Exchange products outside of the Exchange. 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.
AB 2787 (Monning) of 2010 would have established the Office
of the California Health Ombudsman, governed by a chief
executive officer known as the California Health Ombudsman,
and would have required the Ombudsman to educate consumers
on their health care coverage rights and responsibilities,
assist consumers with enrollment in health care coverage,
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and resolve problems with obtaining federal premium tax
credits. Held on suspense in the Senate Appropriations
Committee.
AB 51 (Dymally) of 2006 would have required the OPA to
include in its annual health plan report card information
on quality of care and access provided by Medicare
prescription drug plans. Failed passage out of Assembly
Appropriations Committee.
AB 2170 (Chan) of 2006 was substantively similar to AB 51
(Dymally). Vetoed.
AB 78 (Gallegos), Chapter 525, Statutes of 1999,
establishes the DMHC and transfers the regulation of health
care service plans (health plans) from the Department of
Corporations (DOC) to DMHC.
Arguments in support
Health Access California (HAC), a cosponsor of this bill,
writes that enactment of federal health reform means that
virtually every Californian will have access to quality,
affordable health care. Existing programs, including the
HMOHelp Line, have done much of what is contemplated in
this bill, but not all. HAC contends a state-level
ombudsman who serves as the first line of triage for
consumer complaints, while leaving the respective
regulators and sources of coverage the responsibility for
resolving specific complaints and grievances, is necessary.
HAC asserts that this bill will result in a robust
response to grievances and complaints about the health care
system.
Western Center on Law & Poverty (WCLP), also a cosponsor,
writes that uninsured persons have different needs than
those who are consistently covered. This includes people
who primarily speak a language other than English, those
who have never navigated a health insurance plan, and those
who have never consistently seen a health care provider.
For all those reasons, WCLP states that Californians need a
centralized hub when dealing with questions or problems
with their coverage. WCLP argues that AB 922 leverages
existing consumer assistance programs by allowing OPA to
contract with community based organizations that already
provide consumer assistance services, many of which are
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experts in public programs, while ensuring that the most
qualified organizations can assist consumers in
community-based settings in a linguistically and culturally
appropriate manner. WCLP asserts that this
"hub-and-spokes" approach has been effective in states like
New York, which allows one nonprofit organization to
coordinate with other community organizations to assist
health consumers.
Consumers Union argues that AB 922 positions California to
maximize federal funds for ombudsman and consumer
navigation services, which is critically important to have
in place well in advance of the mandate for individual
coverage that takes effect in 2014. The American
Federation of State, County and Municipal Employees states
that this bill would greatly facilitate California's
ability to comply and cope with federal health reform, and
that the state cannot offer its residents adequate
assistance in this matter currently. The 100% Campaign,
PICO California and the California Coverage & Health
Initiatives state there is no one single place for families
to obtain clear and concise information and support. This
bill not only builds toward future implementation of PPACA,
it provides a needed network to reach out to hundreds of
thousands of children who are currently uninsured but
eligible for California's public program coverage.
The California Optometric Association writes in support,
stating that OPA will provide a "one-stop-shop" that
consolidates the existing fragmented system into one office
to provide clear, concise and up-to-date information to
consumers. The California Chiropractic Association (CCA)
believes that it is essential to provide consumers support
in making coverage choices and for consumer coverage
complaints. By operating as an independent state entity,
CCA believes that OPA will synthesize a fragmented health
care information coverage, outreach and complaint system.
Arguments in opposition
The California Association of Health Plans (CAHP) opposes
AB 922 on the grounds that California already has consumer
advocacy programs under each regulator that are funded by
the industry through assessments and taxes that cost the
industry and its consumers millions of dollars. CAHP
states that this new entity does not provide any order to
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the myriad of assistance programs currently available to
consumers, and instead adds a new layer of government
bureaucracy designed largely to forward calls back to the
regulator. CAHP supports consolidation of existing
consumer related functions, and argues that consolidation
could lead to more uniformity and clarity for consumers.
The Association of California Life and Health Insurance
Companies (ACLHIC) concurs with CAHP, and argues that AB
922 has the potential to increase the cost of health care
by increasing the fees imposed on carriers. ACLHIC points
out that the industry currently funds consumer assistance
programs at DMHC, OPA and CDI, and existing law requires
carriers to include their respective regulator's consumer
complaint number on claims forms, as well as other written
notices that go out to enrollees and insureds. ACLHIC also
asserts that there is no real evidence supporting the
concept of adding an additional independent office for
consumer assistance.
The California Right to Life Committee (CRLC), Inc. writes
that AB 922 advances the PPACA when there are serious
challenges to its constitutionality, and that it would be
better public policy not to depend on federal tax dollars
under these circumstances. CRLC also contends that this
bill "is another attempt to promote family planning and
abortion services to low-income persons and non-English
speaking populations".
PRIOR ACTIONS
Assembly Health: 12- 6
Assembly Appropriations:12- 5
Assembly Floor: 51- 27
Senate Appropriations:6- 3
COMMENTS
1. Recent amendments. Recent floor amendments make the
following significant changes to AB 922:
a. Transfer DMHC from BTH to CHHS.
b. Remove a number of provisions including the
requirement that interpreters for limited-English
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proficiency callers be provided on the telephone
hotline and the provision allowing OPA to revoke the
contract of any organization with which it contracts
to provide patient assistance for violations of
specified standards.
c. Make other technical and conforming changes in the
revision and recasting of OPA duties.
2. Location of DMHC. According to the 2001 California
HealthCare Foundation report, Making Sense of Managed Care
Regulation in California, regulation of Knox-Keene licensed
health plans was originally established under the
Department of Corporations, which then became BTH. In
1999, with the passage of AB 78 (Gallegos), DMHC was
established under BTH for the regulation of Knox-Keene
licensed health plans. According to the author of AB 78,
the intent of the legislation is to establish a regulator
dedicated to consumer protection and quality of care.
Arguably, this could be achieved by locating DMHC under BTH
or any other agency, such as CHHS. CHHS, with its health
expertise, is arguably better suited for coordination of
health reform related requirements. A concern could be
raised that this has the effect of putting the regulation
of health plan and reimbursement to health plans (through
health plan purchasers such as DHCS) under the same agency.
POSITIONS
Prior version:
Support: Health Access California (cosponsor)
Western Center on Law and Poverty (cosponsor)
100% Campaign
American Federation of State, County and
Municipal Employees, AFL-CIO
Asian Pacific American Legal Center
California Association of Marriage and Family
Therapists
California Children's Health Initiatives
California Chiropractic Association
California Coalition for Mental Health
California Coverage & Health Initiatives
California Family Resource Association
California Immigrant Policy Center
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California Optometric Association
California Pan-Ethnic Health Network
California Rural Legal Assistance Foundation
Children NOW
Children's Defense Fund-California
Children's Health Initiatives of Greater Los
Angeles
Children's Partnership
Congress of California Seniors
Consumers Union
First 5 Association of California
Having Our Say
Health Consumer Center
Inland Empire United Way
Maternal and Child Health Access
Mental Health Association in California
National Alliance on Mental Illness California
National Association of Social Workers -
California Chapter
National Health Law Program
Neighborhood Legal Services of Los Angeles County
PICO California
Santa Clara Board of Supervisors
SEIU California
The 100% Campaign
Unitarian Universalist Legislative Ministry
Action Network, CA
United Way of California
Youth Law Center
Oppose:Association of California Life and Health Insurance
Companies
California Right to Life Committee, Inc.
California Association of Health Plans
Insurance Commissioner (unless amended)
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