EasyToInsureME Individual Health Insurance Reform Weekly

Week of November 9, 2009

Given that the Senate is expected to require much more time than the House to vote on a health care bill (see below), it is likely there is not enough legislative time left in 2009 to wrap up a bill for Christmas delivery to the White House. Senate Majority Leader Harry Reid fueled concerns about the schedule last week when he refused to commit publicly to passing an overhaul bill this year. This makes a "conference" between the House and Senate MORE likely in January 2010 THAN IN 2009, and that could require some time since the current House and Senate versions are vastly different on several key provisions. If the Conference pathway proves too contentious, House Speaker Nancy Pelosi and Reid could play legislative "ping-pong," whereby each Chamber makes a modest change and ships if off to the other, back and forth, until they both approve the same language.

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Federal

Late Saturday night the House of Representatives approved its version of health care reform by the slim margin of 220 to 215 (218 was the minimum needed). The core of the approved House bill remained unchanged from the version the Speaker introduced a few weeks ago and includes: an employer mandate to provide and pay for coverage; a fairly strong individual coverage requirement; a public plan option set up by government that would pay "negotiated" rates to providers; and insurance reforms, including guaranteed issue and modified community rating. It does not include the "Cadillac" plan tax or the insurer tax provisions currently in the Senate bill. The House bill would be paid for in part with cuts to Medicare Advantage and a surcharge on the "wealthy."

On the Senate side, Majority Leader Reid is waiting for the revenue score from CBO on several different Senate Bill scenarios, given that several Senators have publicly stated opposition to going forward without a hard and fast number on both cost and impact on bending the spending curve. He also needs this time to win over the 60 votes needed to even proceed with consideration of the bill, let alone the 60 needed to cut off debate once the debate begins; he may not have either right now. The earliest the Senate could start debate would be the week of November 16, but a date in December seems more likely. Approval of the House bill will surely put increased pressure on the Senate to move forward but to do so cautiously, given the slim voting margin in the House, as the issue moves closer to the finish line.

Bills to extend and expand COBRA have been introduced in both the House and Senate and could well be part of the final push on health care reform. Both versions extend the Special COBRA subsidy program from end of 2009 to June 30, 2010 and maintain the government's 65 percent subsidy. The Senate version increases this subsidy to 75 percent, and the House extends basic COBRA eligibility from 18 to 24 months. Given the unemployment numbers, it seems likely that, whether as part of health reform or on its own, a COBRA extension (including the subsidy) will be enacted in 2009.


States

ARIZONA: Governor Jan Brewer and legislative leaders have reached a tentative agreement to reconvene to address the projected 2010 budget shortfall, which ballooned from $1 billion in early September to $2 billion by the end of October. Although the governor favors a temporary tax increase to boost revenue, she is unlikely to float that idea this time around to help limit the length of the session. Governor Brewer is expected to announce her candidacy for re-election. Although the former lieutenant governor is now the incumbent and has never lost an election, she is viewed as vulnerable by some Republicans because of budget concerns and her continued focus on obtaining additional revenue through taxation.


CALIFORNIA: California’s state budget deficit could reach $7 billion for the current fiscal year in part because of recent court decisions blocking state funding cuts. For example, a federal judge recently blocked the state's plans to cut $80 million from its budget for In-Home Supportive Services, and Insurance Commissioner Steve Poizner has filed a suit to block the sale of part of the State Compensation Insurance Fund, which was projected to generate $1 billion. Some analysts project that the state’s budget deficit will range from $10 billion to $20 billion in the upcoming fiscal year. In other developments, Lt. Governor John Garamendi won a special election to fill the Congressional seat vacated by U.S. Representative Ellen Tauscher (D). Garamendi was elected lieutenant governor in 2006 after 16 years in the legislature and two terms as insurance commissioner.

COLORADO: Senator Betty Boyd, President Pro Tem and Chair of the Health and Human Services Committee, met with insurer representatives to highlight the issues likely to get attention in the upcoming session. A proposal to prohibit the use of gender in rating individual policies has a high likelihood of passing, she said. Senator Boyd also advised that efforts will be made to ensure that the Cover Colorado program remains solvent, as it has potential to be used as the state’s public plan option. Speculation has it that Colorado could become one of the first states to act on federal health care reform if it is enacted. Finally, she expressed a strong interest in authorizing the DOI to establish standardized policy forms.

DELAWARE: Department of Health and Social Services Secretary Rita M. Landgraf has issued an update to existing statutes adding virtual colonoscopy as an approved colorectal screening modality. Delaware law requires coverage for colorectal screening modalities and empowers the Secretary to add modalities as recommended by the Delaware Cancer Consortium. Accordingly, all contracts for health insurance issued, delivered or renewed after December 1, 2009 must include coverage for virtual colonoscopy for colorectal cancer screening.

DISTRICT OF COLUMBIA: Newly passed legislation requires individual and group health plans to provide coverage for orally administered chemotherapy medication in a manner no more restrictive than intravenously administered treatment or injected cancer medications. In other business, the Council of the District of Columbia confirmed Acting Commissioner Gennet Purcell as Commissioner for the District of Columbia Department of Insurance, Securities and Banking (DISB). Commissioner Purcell, who served as DISB’s Deputy Commissioner since 2008, is an attorney and member of both the State of Maryland Bar and the Commonwealth of Virginia Bar. As deputy, her primary responsibilities included oversight of the agency’s core functional areas, including the divisions of Insurance, Securities, Banking, Fraud Enforcement and Investigation, and Risk Finance.

GEORGIA: A meeting was held last week between health insurance representatives and the Chairman of the Senate Insurance Committee to discuss legislation for 2010 that would restrict rental networks. The Medical Association of Georgia also was represented. Aetna has committed to work with all interested parties on the legislation.

ILLINOIS: A fall veto session concluded at the end of October, and three health insurance bills of import passed both chambers. The first bill creates external review requirements for all commercial insurance products, rather than just HMOs, effective July 1, 2010. The bill also establishes committees to create a uniform small-employer group health status questionnaire and an individual health statement for use on January 1, 2011. The legislation also requires insurers to semi-annually prepare and provide the Department of Insurance a statement on aggregate administrative expenses and other information. It is a good compromise versus what was originally proposed. In addition, both chambers passed an orthotics and prosthetics mandate on health carriers and HMOs for policies amended, delivered, issued, or renewed six months after the effective date of the amendatory act. The third bill changed the requirements to obtain a producer license. The Illinois General Assembly is not expected to reconvene until January 2010.

MISSOURI: The Secretary of the State recently approved a ballot initiative proposal for the November 2010 ballot that would essentially eliminate network-based health care delivery in Missouri. The move follows unsuccessful efforts to enact an any-willing-provider bill in past legislative sessions.The petition effort behind the ballot initiative appears to have been spearheaded by a local surgical practice that has been excluded from the medical staffs of local hospitals. Any willing provider is only one portion of the proposal. It would apply to health carriers and health benefit plans, including Medicare and Medicaid, and facilities. It would, for example, prohibit carriers from: Imposing on a beneficiary any co-payment, fee, or condition that is not equally imposed on all other beneficiaries in the same benefit category, co-payment level, or class; prohibiting or limiting a provider from the opportunity to participate in the network if that provider is willing to accept the carrier’s operating terms and conditions, fee schedule, covered expenses, utilization and quality standards. The State Auditor is preparing an assessment of the fiscal impact of the proposed measure as well as a brief summary of the fiscal impact for the petition. Legal challenges to the ballot initiative are permitted. A group of stakeholders, including Aetna, are discussing strategy.

NEW JERSEY: Health insurance issues were front and center in a bitter battle for the governor's office, which ended last week when Republican candidate Chris Christie defeated Democratic Governor Jon Corzine. The governor-elect has publicly supported greater flexibility for carriers to make health coverage more affordable via mandate-free plan designs and interstate sales of health policies. The Democrats remain in firm control of the legislature, which will make the governor-elect's agenda an uphill battle. Also, the Department of Banking and Insurance (DOBI) adopted a regulation standardizing the information and format on health identification cards. Additionally, DOBI initiated a meeting with the state's major health plans seeking guidance as to how the state might proceed in limiting plans,’ and members,’ exposure to exorbitant out-of-network provider charges. This is one in a series of meetings aimed at developing consensus on an appropriate fee schedule or other mechanism for non-par provider charges. Lastly, the NJ Department of Health & Senior Services (DHSS) has launched a six-month Hospital Newborn Pilot Program. Nine hospitals throughout the state are participating in a pilot to ensure no newborn leaves the hospital without health insurance. The participating hospitals are expected to submit data to the DHSS.

NEW YORK: Governor David Paterson is calling for a special session to address the current state budget deficit. The Governor’s two-year, $5.2 billion Deficit Reduction Package would have a current-year impact of $3.2 billion in 2009-10 and a recurring impact of $2 billion in 2010-11. The components include across-the-board spending reductions and a tax penalty forgiveness program. The Governor indicated that his agenda will include a bill that would completely prohibit all subrogation (collateral source) recoveries on any insured or self-insured plans. The existing collateral source rule eliminates the potential windfall of double recoveries to plaintiffs who receive benefits and make recoveries from both their insurance coverage and defendant payments, while still ensuring that uncompensated losses are fully compensated. This subrogation legislation passed the Senate earlier this year, but it has not passed the Assembly. In other business, State Sen. Eric Schneiderman, chairman of the Codes Committee, and Sen. Neil Breslin, chairman of the Insurance Committee, introduced a bill known as "Ian's Law," which is named after a patient with muscular dystrophy. The proposed legislation would prohibit non-renewal of group policies and would require heath plans to get state Department of Insurance approval before discontinuing a class of insurance. The bill also would require plans to continue covering a totally disabled policyholder for 18 months, even if the plan gets state permission to cancel an entire class of policies.