BILL ANALYSIS                                                                                                                                                                                                    �



                                                                  SB 1046
                                                                  Page  1

          Date of Hearing:   June 25, 2014

                           ASSEMBLY COMMITTEE ON INSURANCE
                                Henry T. Perea, Chair
                     SB 1046 (Beall) - As Amended:  April 8, 2014

           SENATE VOTE  :  35-0
           
          SUBJECT  :  Insurance: mental illness: developmental disabilities:  
          coverage: penalties.

           SUMMARY  :  Establishes, in addition to any other remedy,  
          administrative penalties up to $2,500 per day for violations of  
          the mental health parity laws for health insurers regulated by  
          the Department of Insurance (DOI).  Specifically,  this bill  :  

          1)Provides the Insurance Commissioner (IC) with the authority,  
            in addition to any other remedy permitted by law, to assess  
            administrative penalties against insurers for violations of  
            mental health parity laws, including laws related to  
            behavioral health treatment coverage.

          2)Specifies that these administrative penalties shall not exceed  
            $2,500 for each violation or, for ongoing and continuous  
            violations, shall not exceed $2,500 per day.

          3)Provides that each patient harmed is a separate and distinct  
            violation.

          4)Establishes that the standard administrative adjudication  
            procedures provided by the Administrative Procedures Act (APA)  
            shall govern the process of determining violations and  
            imposing penalties pursuant to the bill's provisions.  

           EXISTING LAW  :  

          1)Provides that the DOI is the regulator for insurers, including  
            health insurers, under provisions of the Insurance Code, and  
            that the Department of Managed Health Care (DMHC) is the  
            regulator of health care service plans (often referred to as  
            HMOs or health plans) pursuant to the Knox-Keene Health Care  
            Service Plan Act of 1975 (Knox-Keene).

          2)Establishes mental health parity, which requires health plans  
            and health insurers to provide coverage for the diagnosis and  








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            medically necessary treatment of severe mental illnesses of a  
            person of any age, and of serious emotional disturbances of a  
            child, under the same terms and conditions applied to other  
            medical conditions.  

          3)Includes in the definition of severe mental illness:  
            schizophrenia; schizoaffective disorder; bipolar disorder;  
            major depressive disorders; panic disorder;  
            obsessive-compulsive disorder; pervasive developmental  
            disorder or autism; anorexia nervosa; and bulimia nervosa.

          4)Requires health plans and insurers to provide coverage for  
            behavioral health treatment for pervasive developmental  
            disorder or autism no later than July 1, 2012, and requires  
            the coverage to be provided in the same manner and subject to  
            the same requirements as under mental health parity  
            requirements.

          5)Provides that any violation of any provision of the Knox-Keene  
            Act subjects the violator to a civil penalty not to exceed  
            $2,500 for each violation, or in the case of a violation that  
            is ongoing and continuous, a civil penalty up to $2,500 for  
            each day that the violation continues, with each enrollee  
            harmed constituting a separate and distinct violation.  

          6)Subjects insurers, including health insurers, to the Unfair  
            Practices Act (UPA), which includes unfair claims practices,  
            and provides penalties of up to $5,000 for each act, or up to  
            $10,000 for willful acts.  The UPA grants the IC the  
            discretion to establish what constitutes an act within the  
            meaning of the penalty provisions, and specifies that the  
            standard APA adjudicatory procedures apply to hearing on  
            violations and penalties.  

           FISCAL EFFECT  :  According to the Senate Appropriations  
            Committee, pursuant to Senate Rule 28.8, negligible state  
            costs.

           COMMENTS  :

           1)Purpose  .  According to the author, this bill will correct a  
            disparity in penalty authority between DOI and the DMHC for  
            violations of the mental health parity law.  The author  
            indicates that, whereas Knox-Keene health plans are subject to  
            a per day penalty for ongoing or continuous violations, the  








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            Insurance Code has no specific penalty provision applicable to  
            mental health parity violations.  The author asserts that a  
            per day penalty for ongoing violations can be an important  
            tool in enforcing requirements of mental health parity law due  
            to the importance of timeliness of treatment for many mental  
            health conditions.

           2)Background  .  

             a)   California mental health parity law.  California's  
               mental health parity law, enacted in 1999, requires all  
               health insurers and health plans to cover the diagnosis and  
               medically necessary treatment of severe mental illness of a  
               person of any age, and of serious emotional disturbances of  
               a child.  This coverage is required to be at parity with  
               other medical conditions:  no differences in maximum  
               lifetime benefits; copayments, deductibles; or cost sharing  
               are permitted.  Moreover, SB 964 (Steinberg), Chapter 650,  
               Statutes of 2011, specifically requires health plans and  
               insurers to provide behavioral health treatment for autism  
               in a manner consistent with current state mental health  
               parity law and requires plans and insurers to maintain  
               adequate networks of providers, as specified.  In addition,  
               the federal Patient Protection and Affordable Care Act  
               (ACA) explicitly includes mental health and substance abuse  
               services, including behavioral health treatment, as one of  
               the 10 categories of service that must be covered as  
               essential health benefits (EHBs).  

             b)   Senate Hearings.  On June 27, 2013, the Senate Select  
               Committee on Mental Health held a hearing on compliance  
               with the state's mental health parity law.  The Insurance  
               Commissioner's written testimony indicates that after  
               passage of SB 946, complaints about insurers denying claims  
               for autism-related services and treatment continued.  In  
               2012, CDI received 184 complaints about mental health  
               coverage, almost all of which included claims denial.  CDI  
               indicates 153 mental health claims denials were subject to  
               the Independent Medical Review process, 80 of which saw the  
               insurer's decision fully or partially overturned.  

             On March 4, 2014, the Senate Select Committee on Autism and  
               Related Disorders held an informational hearing on SB 946  
               implementation.  According to DMHC, there were 20 matters  
               (each "matter" may be more than one complaint or type of  








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               enforcement action) in total related to the state's mental  
               health parity law and its corresponding regulation.  The  
               monetary penalties for these matters totaled $4.2 million.   
               DMHC also indicates that the range of enforcement actions  
               includes not only assessing monetary penalties and filing  
               civil actions, but also issuing cease and desist orders,  
               corrective actions, and installing conservators and  
               monitors.  

           3)Dual regulatory structure  .  California has a somewhat unique  
            regulatory structure for "health insurance."  In virtually  
            every other jurisdiction, a single regulator is responsible  
            for the laws governing both traditional "health insurers" and  
            modern "HMOs" or "health plans."  As pre-paid or managed care  
            organizations began to become popular alternatives to  
            traditional indemnity insurance in the early 1970's, and as  
            some of these organizations objected to being treated as  
            "insurers" pursuant to the Insurance Code, a separate  
            regulatory structure known as the Knox-Keene Act was adopted  
            in 1975, and the Department of Corporations was designated as  
            the regulator (later shifted to the Department of Managed  
            Health Care, which has no non-Knox-Keene responsibilities).   
            The Knox-Keene Act governs both "full-service" (health  
            insurance) and "specialized" (dental or vision) health care  
            service plans.  Its enforcement provisions broadly apply to  
            all plans and any violations, without distinction.

          The Insurance Code applies much more broadly than the Knox-Keene  
            Act - all types of insurers are covered by the Code.  It was  
            not created specifically for a certain type of insurance  
            coverage, and developed over a much longer period of time.

          In the mid-1970's, a traditional health insurer looked and  
            operated very differently from a pre-paid health care service  
            plan.  Today, it is often difficult to tell the difference  
            between an entity that is licensed by the DOI and an entity  
            that is licensed by the DMHC.  There are certainly  
            differences, but few of the differences are visible to  
            patients seeking coverage for their health care needs.   
            Indeed, most major health coverage entities have companies  
            licensed by both regulators (even Kaiser, the "classic" model  
            for a Knox-Keene plan, has an affiliated DOI-licensed  
            insurance company).

          Currently, the vast majority of people covered by commercial  








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            health insurance (pursuant to ERISA, many large employers do  
            not buy health insurance for their employees, but instead  
            "self-insure") are covered by Knox-Keene licensees -  
            approximately 21 million lives, as opposed to between 2 and 3  
            million lives covered by DOI licensees.

           4)Knox-Keene/DOI parity for mental health parity  .  Essentially,  
            this bill calls for parity of enforcement authority as between  
            DOI and DMHC with respect to the mental health parity laws.   
            Mental health parity laws are not the only matters for which  
            DOI/DMHC differences exist.  With respect to enforcement, the  
            same arguments as posed by proponents of this bill could be  
            made on virtually any other health insurance issue.  Virtually  
            every mandate to offer, coverage requirement, or other  
            regulatory rule governing health insurance enacted since 1975  
            has had both an Insurance Code and a Health and Safety Code  
            (where the Knox-Keene Act is codified) parallel provision.   
            But as the substantive laws have developed on parallel tracks,  
            enforcement has traditionally been left to the basic  
            enforcement provisions granted to the IC as head of the DOI,  
            and the basic enforcement provisions granted to DMHC by the  
            Knox-Keene Act.  

          According to the author, and to DOI, the sponsor of the bill,  
            resistance in the marketplace to implementation of mental  
            health parity makes this issue uniquely in need of a change in  
            the law so that the IC will have the power to penalize, or  
            obtain compliance due to the risk of a penalty, on par with  
            what the DMHC might impose on one of its licensees.  They  
            assert that this is not a "flavor of the month" situation,  
            where the bill serves as the starting point for future similar  
            legislation with respect to numerous other "special"  
            situations with respect to numerous other medical conditions.

           5)Extent of penalty authority  .  It is clear, especially with  
            respect to "ongoing and continuous" violations, that current  
            the DMHC penalty structure can reach a higher dollar figure.   
            But the UPA in the Insurance Code is no minor enforcement tool  
            in its own right.  For example, if a health insurer adopted a  
            wrongful claims payment rule with respect to certain therapies  
            for autism, this would be deemed a "willful" act, subject to a  
            penalty of $10,000 per act.  If that rule were applied to 100  
            autism patients, and those patients each filed 10 claims for a  
            weekly recurring treatment, the resulting penalty would be up  
            to $10 million.  Under the bill's proposal, using the same  








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            hypothetical, there would be 100 patients, times 70 days,  
            times $2500 with a potential penalty of up to $17.5 million.   
            The author and proponents believe that this enhanced scope for  
            the potential penalties will result in better compliance with  
            the law due to insurers' desire to avoid being found in  
            violation of the law.  On the other hand, the UPA in the  
            Insurance Code could provide higher penalties than the  
            Knox-Keene penalty structure on other fact patterns.   
            According to the terms of the bill, the IC would have the  
            discretion to select whichever enforcement tool results in the  
            higher penalty.

           6)Notice and definition of "ongoing and continuous"  ?  Health  
            insurers have raised the concern that it is unclear what  
            counts as an "ongoing and continuous" violation, and that, due  
            to the substantially enhanced penalty associated with having  
            that characterization, an insurer should receive notice of the  
            allegation so that it might cure the problem before incurring  
            the enhanced penalties.  While acknowledging that the language  
            comes from the rules being enforced by DMHC currently, where  
            there is no definition or notice provision, these insurers  
            note that on virtually every implementation issue, the DMHC  
            regulations and DOI regulations are different, and compliance  
            with one may not constitute compliance with the other.  They  
            argue, therefore, that just because something has worked for  
            DMHC is no reason to assume it will be the same with DOI.

           7)Related legislation  .  SB 22 (Beall) would have required health  
            plans and insurers to report to DMHC and DOI, respectively, on  
            compliance with state and federal law related to mental health  
            parity.  SB 22 was held on the suspense file in the Assembly  
            Appropriations Committee.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          American Association for Marriage and Family Therapy, California  
          Division
          Association of Regional Center Agencies
          Autism Health Insurance Project
          Autism Research Group
          Autism Speaks
          California Association for Behavior Analysis
          California Association of Alcohol and Drug Program Executives








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          California Association of Local Mental Health Boards and  
          Commissions
          California Chapter of the American College of Emergency  
          Physicians
          California Council of Community Mental Health Agencies
          California Department of Insurance (sponsor)
           ACT Today!
          California Mental Health Planning Council
          California Psychiatric Association
          California Psychological Association
          Center for Autism and Related Disorders
          Children Now
          Institute for Behavioral Training
          Mental Health America of California
          NAMI San Fernando Valley
          NAMI San Francisco
          National Alliance on Mental Illness (NAMI) California
          National Association of Social Workers, California Chapter
          Several Individuals
          Southern California Psychiatric Society
          The Children's Partnership

           Opposition 
           
          Association of California Life and Health Insurance Companies  
          (unless amended)

           Analysis Prepared by  :    Mark Rakich / INS. / (916) 319-2086