HOUSE AMENDED PRIOR PRINTER'S NO. 293 PRINTER'S NO. 1211
No. 550 Session of 2007
INTRODUCED BY D. WHITE, ERICKSON, RHOADES, ARMSTRONG, RAFFERTY, ORIE, O'PAKE, VANCE, EARLL, STACK AND C. WILLIAMS, MARCH 8, 2007
AS REPORTED FROM COMMITTEE ON INSURANCE, HOUSE OF REPRESENTATIVES, AS AMENDED, JUNE 21, 2007
AN ACT 1 Amending the act of May 17, 1921 (P.L.682, No.284), entitled "An <-- 2 act relating to insurance; amending, revising, and 3 consolidating the law providing for the incorporation of 4 insurance companies, and the regulation, supervision, and 5 protection of home and foreign insurance companies, Lloyds 6 associations, reciprocal and inter-insurance exchanges, and 7 fire insurance rating bureaus, and the regulation and 8 supervision of insurance carried by such companies, 9 associations, and exchanges, including insurance carried by 10 the State Workmen's Insurance Fund; providing penalties; and 11 repealing existing laws," further providing, in insurance 12 holding companies, for definitions, for acquisition of 13 control of or merger with domestic insurer and for 14 acquisitions involving insurers not otherwise covered; and 15 making an inconsistent repeal. 16 AMENDING THE ACT OF MAY 17, 1921 (P.L.682, NO.284), ENTITLED "AN <-- 17 ACT RELATING TO INSURANCE; AMENDING, REVISING, AND 18 CONSOLIDATING THE LAW PROVIDING FOR THE INCORPORATION OF 19 INSURANCE COMPANIES, AND THE REGULATION, SUPERVISION, AND 20 PROTECTION OF HOME AND FOREIGN INSURANCE COMPANIES, LLOYDS 21 ASSOCIATIONS, RECIPROCAL AND INTER-INSURANCE EXCHANGES, AND 22 FIRE INSURANCE RATING BUREAUS, AND THE REGULATION AND 23 SUPERVISION OF INSURANCE CARRIED BY SUCH COMPANIES, 24 ASSOCIATIONS, AND EXCHANGES, INCLUDING INSURANCE CARRIED BY 25 THE STATE WORKMEN'S INSURANCE FUND; PROVIDING PENALTIES; AND 26 REPEALING EXISTING LAWS," PROVIDING, IN HEALTH AND ACCIDENT 27 INSURANCE, FOR AUTISM SPECTRUM DISORDERS COVERAGE AND FOR 28 TREATMENT OF AUTISM SPECTRUM DISORDERS; AND FURTHER PROVIDING 29 FOR PROCEDURES. 30 The General Assembly of the Commonwealth of Pennsylvania
1 hereby enacts as follows: 2 Section 1. The definitions of "insurer" and "person" in <-- 3 section 1401 of the act of May 17, 1921 (P.L.682, No.284), known 4 as The Insurance Company Law of 1921, amended December 20, 2000 5 (P.L.967, No.132), are amended and the section is amended by 6 adding a definition to read: 7 Section 1401. Definitions.--As used in this article, and for 8 the purposes of this article only, the following words and 9 phrases shall have the meanings given to them in this section: 10 * * * 11 "Insurer." Any health maintenance organization, preferred 12 provider organization, company, association [or], exchange, 13 hospital plan corporation subject to 40 Pa.C.S. Ch. 61 (relating 14 to hospital plan corporations) or professional health services 15 plan corporation subject to 40 Pa.C.S. Ch. 63 (relating to 16 professional health services plan corporations), authorized by 17 the Insurance Commissioner to transact the business of insurance 18 in this Commonwealth except that the term shall not include: 19 (1) the Commonwealth or any agency or instrumentality 20 thereof; 21 (2) agencies, authorities or instrumentalities of the United 22 States, its possessions and territories, the Commonwealth of 23 Puerto Rico, the District of Columbia or a state or political 24 subdivision; or 25 (3) fraternal benefit societies[; or 26 (4) nonprofit medical and hospital service associations]. 27 * * * 28 "Person." An individual, an insurer, a corporation, a 29 partnership, a limited liability company, an association, a 30 joint stock company, a trust, an unincorporated organization, 20070S0550B1211 - 2 -
1 any similar entity or any combination of the foregoing acting in 2 concert. The term shall not include any joint venture 3 partnership exclusively engaged in owning, managing, leasing or 4 developing real or tangible personal property. 5 * * * 6 "Shareholder." A record holder or record owner of shares of 7 an insurer. 8 (1) The term shall include all of the following: 9 (i) A member of an insurer that is a domestic 10 nonstock corporation under 15 Pa.C.S. Ch. 21 (relating to 11 nonstock corporations) or a prior statute. 12 (ii) A member, as defined in 15 Pa.C.S. § 5103 13 (relating to definitions), of an insurer that is a 14 domestic nonprofit corporation under 15 Pa.C.S. Ch. 51 15 (relating to general provisions) or a prior statute. 16 (iii) A subscriber of an insurer that is a domestic 17 reciprocal exchange under Article X or a prior statute. 18 (2) The term shall not include any subscriber, insured 19 or customer of: 20 (i) a hospital plan corporation subject to 40 21 Pa.C.S. Ch. 61 (relating to hospital plan corporations); 22 or 23 (ii) a professional health service plan corporation 24 subject to 40 Pa.C.S. Ch. 63 (relating to professional 25 health services plan corporations). 26 * * * 27 Section 2. Section 1402 of the act, amended or added 28 December 18, 1992 (P.L.1519, No.178) and December 21, 1998 29 (P.L.1108, No.150), is amended to read: 30 Section 1402. Acquisition of Control of or Merger or 20070S0550B1211 - 3 -
1 Consolidation with Domestic Insurer.--(a) (1) No person other 2 than the issuer shall make a tender offer for or a request or 3 invitation for tenders of, or enter into any agreement to 4 exchange securities or seek to acquire or acquire in the open 5 market or otherwise, any voting security of a domestic insurer 6 if, after the consummation thereof, such person would directly 7 or indirectly or by conversion or by exercise of any right to 8 acquire, be in control of such insurer, and no person shall 9 enter into an agreement to merge or consolidate with or 10 otherwise to acquire control of a domestic insurer or any person 11 controlling a domestic insurer unless, at the time any such 12 offer, request or invitation is made or any such agreement is 13 entered into or prior to the acquisition of such securities if 14 no offer or agreement is involved, such person has filed with 15 the department and has sent to such insurer a statement 16 containing the information required by this section and such 17 offer, request, invitation, agreement or acquisition has been 18 approved by the department in the manner hereinafter prescribed. 19 (2) For purposes of this section, a "domestic insurer" shall 20 include any person controlling a domestic insurer unless such 21 person as determined by the department is either directly or 22 through its affiliates primarily engaged in business other than 23 the business of insurance. Such person shall, however, file a 24 preacquisition notification with the department containing the 25 information set forth in section 1403(c)(2) thirty (30) days 26 prior to the proposed effective date of the acquisition. Failure 27 to file is subject to section 1403(e)(3). For purposes of this 28 section, "person" shall not include any securities broker 29 holding, in the usual and customary manner, less than twenty per 30 centum (20%) of the voting securities of an insurance company or 20070S0550B1211 - 4 -
1 of any person which controls an insurance company. 2 (b) The statement to be filed with the department under this 3 section shall be made under oath or affirmation and shall 4 contain the following information: 5 (1) The name and address of each person by whom or on whose 6 behalf the merger, consolidation or other acquisition of control 7 referred to in subsection (a) is to be effected, hereinafter 8 called "acquiring party," and 9 (i) if such person is an individual, his principal 10 occupation and all offices and positions held during the past 11 five (5) years, and any conviction of crimes other than minor 12 traffic violations during the past ten (10) years; or 13 (ii) if such person is not an individual, a report of the 14 nature of its business operations during the past five (5) years 15 or for such lesser period as the person and any predecessors 16 thereof shall have been in existence; an informative description 17 of the business intended to be done by the person and the 18 person's subsidiaries; and a list of all individuals who are or 19 who have been selected to become directors or executive officers 20 of the person, or who perform or will perform functions 21 appropriate to those positions. This list shall include for each 22 individual the information required by subparagraph (i). 23 (2) The source, nature and amount of the consideration used 24 or to be used in effecting the merger, consolidation or other 25 acquisition of control, a description of any transaction wherein 26 funds were or are to be obtained for any such purpose, including 27 any pledge of the insurer's stock or the stock of any of its 28 subsidiaries or controlling affiliates, and the identity of 29 persons furnishing such consideration, provided, however, that 30 where a source of such consideration is a loan made in the 20070S0550B1211 - 5 -
1 lender's ordinary course of business, the identity of the lender 2 shall remain confidential if the person filing such statement so 3 requests. 4 (3) Fully audited financial information as to the earnings 5 and financial condition of each acquiring party for the 6 preceding five (5) fiscal years of each such acquiring party, or 7 for such lesser period as such acquiring party and any 8 predecessors thereof shall have been in existence, and similar 9 unaudited information as of a date not earlier than ninety (90) 10 days prior to the filing of the statement. 11 (4) Any plans or proposals which each acquiring party may 12 have to liquidate such insurer, to sell its assets or merge or 13 consolidate it with any person or to make any other material 14 change in its business or corporate structure or management. 15 (5) The number of shares of any security referred to in 16 subsection (a) which each acquiring party proposes to acquire, 17 and the terms of the offer, request, invitation, agreement or 18 acquisition referred to in subsection (a), and a statement as to 19 the method by which the fairness of the proposal was arrived. 20 (6) The amount of each class of any security referred to in 21 subsection (a) which is beneficially owned or concerning which 22 there is a right to acquire beneficial ownership by each 23 acquiring party. 24 (7) A full description of any contracts, arrangements or 25 understandings with respect to any security referred to in 26 subsection (a) in which any acquiring party is involved, 27 including, but not limited to, transfer of any of the 28 securities, joint ventures, loan or option arrangements, puts or 29 calls, guarantees of loans, guarantees against loss or 30 guarantees of profits, division of losses or profits, or the 20070S0550B1211 - 6 -
1 giving or withholding of proxies. Such description shall 2 identify the persons with whom such contracts, arrangements or 3 understandings have been entered into. 4 (8) A description of the purchase of any security referred 5 to in subsection (a) during the twelve calendar months preceding 6 the filing of the statement, by any acquiring party, including 7 the dates of purchase, names of the purchasers and consideration 8 paid or agreed to be paid therefor. 9 (9) A description of any recommendations to purchase any 10 security referred to in subsection (a) made during the twelve 11 calendar months preceding the filing of the statement, by any 12 acquiring party, or by anyone based upon interviews or at the 13 suggestion of such acquiring party. 14 (10) Copies of all tender offers for, requests or 15 invitations for tenders of, exchange offers for and agreements 16 to acquire or exchange any securities referred to in subsection 17 (a) and, if distributed, of additional soliciting material 18 relating thereto. 19 (11) The term of any agreement, contract or understanding 20 made with or proposed to be made with any broker-dealer as to 21 solicitation of securities referred to in subsection (a) for 22 tender and the amount of any fees, commissions or other 23 compensation to be paid to broker-dealers with regard thereto. 24 (12) Such additional information as the department may by 25 rule or regulation prescribe as necessary or appropriate for the 26 protection of policyholders of the insurer or in the public 27 interest. 28 (c) If the person required to file the statement referred to 29 in subsection (a) is a partnership, limited partnership, 30 syndicate or other group, the department may require that the 20070S0550B1211 - 7 -
1 information called for by subsection (b)(1) through (12) shall 2 be given with respect to each partner of such partnership or 3 limited partnership, each member of such syndicate or group and 4 each person who controls such partner or member. If any such 5 partner, member or person is a corporation or the person 6 required to file the statement referred to in subsection (a) is 7 a corporation, the department may require that the information 8 called for by subsection (b)(1) through (12) shall be given with 9 respect to such corporation, each officer and director of such 10 corporation and each person who is directly or indirectly the 11 beneficial owner of more than ten per centum (10%) of the 12 outstanding voting securities of such corporation. 13 (d) If any material change occurs in the facts set forth in 14 the statement filed with the department and sent to such insurer 15 pursuant to this section, an amendment setting forth such 16 change, together with copies of all documents and other material 17 relevant to such change, shall be filed with the department and 18 sent to such insurer within two (2) business days after the 19 person learns of such change. 20 (e) If any offer, request, invitation, agreement or 21 acquisition referred to in subsection (a) is proposed to be made 22 by means of a registration statement under the Securities Act of 23 1933 (48 Stat. 74, 15 U.S.C. § 77a et seq.), or in circumstances 24 requiring the disclosure of similar information under the 25 Securities Exchange Act of 1934 (48 Stat. 881, 15 U.S.C. § 78a 26 et seq.), or under a State law requiring similar registration or 27 disclosure, the person required to file the statement referred 28 to in subsection (a) may utilize such documents in furnishing 29 the information called for by that statement. 30 (f) (1) The department shall approve any merger, 20070S0550B1211 - 8 -
1 consolidation or other acquisition of control referred to in 2 subsection (a) unless it finds any of the following: 3 (i) After the change of control, the domestic insurer 4 referred to in subsection (a) would not be able to satisfy the 5 requirements for the issuance of a license to write the line or 6 lines of insurance for which it is presently licensed. 7 (ii) The effect of the merger, consolidation or other 8 acquisition of control would be to substantially lessen 9 competition in insurance in this Commonwealth or tend to create 10 a monopoly therein. In applying the competitive standard in this 11 subparagraph: 12 (A) the informational requirements of section 1403(c)(2) and 13 the standards of section 1403(d)(2) shall apply; 14 (B) the merger, consolidation or other acquisition shall not 15 be disapproved if the department finds that any of the 16 situations meeting the criteria provided by section 1403(d)(3) 17 exist; and 18 (C) the department may condition the approval of the merger, 19 consolidation or other acquisition on the removal of the basis 20 of disapproval within a specified period of time. 21 (iii) The financial condition of any acquiring party is such 22 as might jeopardize the financial stability of the insurer or 23 prejudice the interest of its policyholders. 24 (iv) The plans or proposals which the acquiring party has to 25 liquidate the insurer, sell its assets or consolidate or merge 26 it with any person, or to make any other material change in its 27 business or corporate structure or management, are unfair and 28 unreasonable to policyholders of the insurer and not in the 29 public interest. 30 (v) The competence, experience and integrity of those 20070S0550B1211 - 9 -
1 persons who would control the operation of the insurer are such 2 that it would not be in the interest of policyholders of the 3 insurer and of the public to permit the merger, consolidation or 4 other acquisition of control. 5 (vi) The acquisition is likely to be hazardous or 6 prejudicial to the insurance buying public. 7 (vii) The merger, consolidation or other acquisition of 8 control is not in compliance with the laws of this Commonwealth, 9 including Article VIII-A. 10 (2) If the merger, consolidation or other acquisition of 11 control is approved, the department shall so notify the person 12 filing the statement and the insurer [whose stock] that is 13 proposed to be acquired, and such a determination is hereafter 14 referred to as an approving determination. Notice shall also be 15 given by the department of any determination which is not an 16 approving determination. If an approving determination is made 17 by the department and not otherwise, the proposed offer and 18 acquisition may thereafter be made and consummated on the terms 19 and conditions and in the manner described in the statement and 20 subject to such conditions as may be prescribed by the 21 department as hereinafter provided. An approving determination 22 by the department shall be deemed to extend to offers or 23 acquisitions made pursuant thereto within one year following the 24 date of determination. The department may, as a condition of its 25 approving determination, require the inclusion in any offer of 26 provisions requiring the offer to remain open a specified 27 minimum length of time, permitting withdrawal of shares 28 deposited prior to the time the offeror becomes bound to 29 consummate the acquisition and requiring pro rata acceptance of 30 any shares deposited pursuant to the offer. The department shall 20070S0550B1211 - 10 -
1 hold a hearing before making the determination required by this 2 subsection if, within ten (10) days following the filing with 3 the department of the statement, written request for the holding 4 of such hearing is made either by the person proposing to make 5 the acquisition, by the insurer [whose stock] that is proposed 6 to be acquired or, if [such] the issuer of stock proposed to be 7 acquired is not an insurer, by the [insurance company] insurer 8 controlled by such issuer. Otherwise, the department shall 9 determine in its discretion whether such a hearing shall be 10 held. Thirty (30) days' notice of any such hearing shall be 11 given to the person proposing to make the acquisition, to the 12 issuer whose stock is proposed to be acquired and, if such 13 issuer is not an insurer, to the insurance company controlled by 14 such issuer. Notice of any such hearing shall also be given to 15 such other persons, if any, as the department may determine. 16 (3) The department may retain at the acquiring person's 17 expense any attorneys, actuaries, accountants and other experts 18 not otherwise a part of the department's staff as may be 19 reasonably necessary to assist the department in reviewing the 20 proposed acquisition of control. 21 (g) The provisions of this section shall not apply to any 22 offer, request, invitation, agreement or acquisition which the 23 department by order shall exempt therefrom as: 24 (1) not having been made or entered into for the purpose and 25 not having the effect of changing or influencing the control of 26 a domestic insurer; or 27 (2) as otherwise not comprehended within the purposes of 28 this section. 29 (h) The following shall constitute a violation of this 30 section: 20070S0550B1211 - 11 -
1 (1) the failure to file any statement, amendment or other 2 material required to be filed pursuant to subsection (a) or (b); 3 (2) the effectuation or any attempt to effectuate an 4 acquisition of control of or merger or consolidation with a 5 domestic insurer unless the department has given its approval 6 thereto; or 7 (3) a violation of section 819-A. 8 Section 3. Section 1403(a), (b) and (d), added December 18, 9 1992 (P.L.1519, No.178), are amended to read: 10 Section 1403. Acquisitions Involving Insurers not Otherwise 11 Covered.--(a) As used in this section the following words and 12 phrases shall have the meanings given to them in this 13 subsection: 14 "Acquisition." Any agreement, arrangement or activity the 15 consummation of which results in a person acquiring, directly or 16 indirectly, the control of another person and includes, but is 17 not limited to, the acquisition of voting securities, the 18 acquisition of assets, bulk reinsurance [and], mergers and 19 consolidations. 20 "Involved insurer." Includes an insurer which either 21 acquires or is acquired, is affiliated with an acquirer or 22 acquired or is the result of a merger or consolidation. 23 (b) (1) Except as exempted in paragraph (2), this section 24 applies to any acquisition in which there is a change in control 25 of an insurer authorized to do business in this Commonwealth. 26 (2) This section shall not apply to any of the following: 27 (i) An acquisition subject to approval or disapproval by the 28 department pursuant to section 1402. 29 (ii) A purchase of securities solely for investment purposes 30 so long as such securities are not used by voting or otherwise 20070S0550B1211 - 12 -
1 to cause or attempt to cause the substantial lessening of 2 competition in any insurance market in this Commonwealth. If a 3 purchase of securities results in a presumption of control as 4 described in the definition of "control" in section [1301] 1401, 5 it is not solely for investment purposes unless the insurance 6 department of the insurer's state of domicile accepts a 7 disclaimer of control or affirmatively finds that control does 8 not exist and such disclaimer action or affirmative finding is 9 communicated by the domiciliary insurance department to the 10 Insurance Department of the Commonwealth. 11 (iii) The acquisition of a person by another person when 12 both persons are neither directly nor through affiliates 13 primarily engaged in the business of insurance, if 14 preacquisition notification is filed with the department in 15 accordance with subsection (c)(2) thirty (30) days prior to the 16 proposed effective date of the acquisition. However, such 17 preacquisition notification is not required for exclusion from 18 this section if the acquisition would otherwise be excluded from 19 this section by this paragraph. 20 (iv) The acquisition of already affiliated persons. 21 (v) An acquisition if, as an immediate result of the 22 acquisition: 23 (A) in no market would the combined market share of the 24 involved insurers exceed five per centum (5%) of the total 25 market; 26 (B) there would be no increase in any market share; or 27 (C) in no market would: 28 (I) the combined market share of the involved insurers 29 exceeds twelve per centum (12%) of the total market; and 30 (II) the market share increases by more than two per centum 20070S0550B1211 - 13 -
1 (2%) of the total market. 2 For the purpose of this subparagraph, a market means direct 3 written insurance premium in this Commonwealth for a line of 4 business as contained in the annual statement required to be 5 filed by insurers licensed to do business in this Commonwealth. 6 (vi) An acquisition for which a preacquisition notification 7 would be required pursuant to this section due solely to the 8 resulting effect on the ocean marine insurance line of business. 9 (vii) An acquisition of an insurer whose domiciliary 10 insurance department affirmatively finds that such insurer is in 11 failing condition; there is a lack of feasible alternative to 12 improving such condition; the public benefits of improving such 13 insurer's condition through the acquisition exceed the public 14 benefits that would arise from not lessening competition; and 15 such findings are communicated by the domiciliary insurance 16 department to the Insurance Department of the Commonwealth. 17 (3) Sections 1409(b) and (c) and 1411 shall not apply to 18 acquisitions provided for in this subsection. 19 * * * 20 (d) (1) The department may enter an order under subsection 21 (e)(1) with respect to an acquisition if there is substantial 22 evidence that the effect of the acquisition may be substantially 23 to lessen competition in any line of insurance in this 24 Commonwealth or tend to create a monopoly therein or if the 25 insurer fails to file adequate information in compliance with 26 subsection (c). 27 (2) In determining whether a proposed acquisition would 28 violate the competitive standard of paragraph (1), the 29 department shall consider the following: 30 (i) Any acquisition covered under subsection (b) involving 20070S0550B1211 - 14 -
1 two or more insurers competing in the same market is prima facie 2 evidence of violation of the competitive standards as follows: 3 (A) if the market is highly concentrated and the involved 4 insurers possess the following shares of the market: 5 Insurer A Insurer B 6 4% 4% or more 7 10% 2% or more 8 15% 1% or more; or 9 (B) if the market is not highly concentrated and the 10 involved insurers possess the following shares of the market: 11 Insurer A Insurer B 12 5% 5% or more 13 10% 4% or more 14 15% 3% or more 15 19% 1% or more. 16 A highly concentrated market is one in which the share of the 17 four largest insurers is seventy-five per centum (75%) or more 18 of the market. Percentages not shown in the tables are 19 interpolated proportionately to the percentages that are shown. 20 If more than two insurers are involved, exceeding the total of 21 the two columns in the table is prima facie evidence of 22 violation of the competitive standard in paragraph (1). For the 23 purpose of this subparagraph, the insurer with the largest share 24 of the market shall be deemed to be insurer A. 25 (ii) There is a significant trend toward increased 26 concentration when the aggregate market share of any grouping of 27 the largest insurers in the market, from the two largest to the 28 eight largest, has increased by seven per centum (7%) or more of 29 the market over a period of time extending from any base year 30 five (5) to ten (10) years prior to the acquisition up to the 20070S0550B1211 - 15 -
1 time of the acquisition. Any acquisition [or merger], merger or 2 consolidation covered under subsection (b) involving two or more 3 insurers competing in the same market is prima facie evidence of 4 violation of the competitive standard in paragraph (1) if: 5 (A) there is a significant trend toward increased 6 concentration in the market; 7 (B) one of the insurers involved is one of the insurers in a 8 grouping of such large insurers showing the requisite increase 9 in the market share; and 10 (C) another involved insurer's market is two per centum (2%) 11 or more. 12 (iii) For the purposes of this paragraph: 13 (A) The term "insurer" includes any company or group of 14 companies under common management, ownership or control. 15 (B) The term "market" means the relevant product and 16 geographical markets. In determining the relevant product and 17 geographical markets, the department shall give due 18 consideration to, among other things, the definitions or 19 guidelines, if any, promulgated by the NAIC and to information, 20 if any, submitted by parties to the acquisition. In the absence 21 of sufficient information to the contrary, the relevant product 22 market is assumed to be the direct written insurance premium for 23 a line of business, such line being that used in the annual 24 statement required to be filed by insurers doing business in 25 this Commonwealth and the relevant geographical market is 26 assumed to be this Commonwealth. 27 (C) The burden of showing prima facie evidence of violation 28 of the competitive standard rests upon the commissioner. 29 (iv) Even though an acquisition is not prima facie violative 30 of the competitive standard under subparagraphs (i) and (ii), 20070S0550B1211 - 16 -
1 the department may establish the requisite anticompetitive 2 effect based upon other substantial evidence. Even though an 3 acquisition is prima facie violative of the competitive standard 4 under subparagraphs (i) and (ii), a party may establish the 5 absence of the requisite anticompetitive effect based upon other 6 substantial evidence. Relevant factors in making a determination 7 under this paragraph include, but are not limited to, the 8 following: market shares, volatility of ranking of market 9 leaders, number of competitors, concentration, trend of 10 concentration in the industry and ease of entry and exit into 11 the market. 12 (3) An order may not be entered under subsection (e)(1) if: 13 (i) the acquisition will yield substantial economies of 14 scale or economies in resource utilization that cannot be 15 feasibly achieved in any other way, and the public benefits 16 which would arise from such economies exceed the public benefits 17 which would arise from not lessening competition; or 18 (ii) the acquisition will substantially increase the 19 availability of insurance, and the public benefits of such 20 increase exceed the public benefits which would arise from not 21 lessening competition. 22 * * * 23 Section 4. The act of December 19, 1990 (P.L.834, No.198), 24 known as the GAA Amendments Act of 1990, is repealed insofar as 25 it is inconsistent with this act. 26 Section 5. This act shall not apply to any merger, 27 consolidation or other acquisition of control made or 28 consummated prior to January 1, 2007, and, if required, 29 following the issuance of an approving determination. 30 Section 6. This act shall take effect immediately. 20070S0550B1211 - 17 -
1 SECTION 1. THE ACT OF MAY 17, 1921 (P.L.682, NO.284), KNOWN <-- 2 AS THE INSURANCE COMPANY LAW OF 1921, IS AMENDED BY ADDING 3 SECTIONS TO READ: 4 SECTION 635.2. AUTISM SPECTRUM DISORDERS COVERAGE.--(A) A 5 HEALTH INSURANCE POLICY OR GOVERNMENT PROGRAM SHALL PROVIDE TO 6 COVERED INDIVIDUALS OR RECIPIENTS UNDER TWENTY-ONE YEARS OF AGE 7 COVERAGE FOR THE DIAGNOSIS OF AUTISM SPECTRUM DISORDERS AND FOR 8 THE TREATMENT OF AUTISM SPECTRUM DISORDERS. 9 (B) EXCEPT FOR THE COMMONWEALTH'S MEDICAL ASSISTANCE PROGRAM 10 ESTABLISHED UNDER THE ACT OF JUNE 13, 1967 (P.L.31, NO.21), 11 KNOWN AS THE "PUBLIC WELFARE CODE," AND EXCEPT FOR THE 12 CHILDREN'S HEALTH CARE PROGRAM ESTABLISHED UNDER THIS ACT, 13 COVERAGE PROVIDED UNDER THIS SECTION SHALL BE SUBJECT TO A 14 MAXIMUM BENEFIT OF THIRTY-SIX THOUSAND DOLLARS ($36,000) PER 15 YEAR BUT SHALL NOT BE SUBJECT TO ANY LIMITS ON THE NUMBER OF 16 VISITS TO AN AUTISM SERVICE PROVIDER. AFTER DECEMBER 30, 2009, 17 THE INSURANCE COMMISSIONER SHALL, ON AN ANNUAL BASIS, ADJUST THE 18 MAXIMUM BENEFIT FOR INFLATION USING THE MEDICAL PRICE INDEX 19 (MPI) COMPONENT OF THE DEPARTMENT OF LABOR CONSUMER PRICE INDEX 20 (CPI). THE COMMISSIONER SHALL SUBMIT THE ADJUSTED MAXIMUM 21 BENEFIT TO THE LEGISLATIVE REFERENCE BUREAU FOR PUBLICATION 22 ANNUALLY IN THE PENNSYLVANIA BULLETIN NO LATER THAN APRIL 1 OF 23 EACH CALENDAR YEAR, AND THE PUBLISHED ADJUSTED MAXIMUM BENEFIT 24 SHALL BE APPLICABLE IN THE FOLLOWING CALENDAR YEAR TO HEALTH 25 INSURANCE POLICIES AND GOVERNMENT PROGRAMS SUBJECT TO THIS ACT. 26 PAYMENTS MADE BY AN INSURER ON BEHALF OF A COVERED INDIVIDUAL 27 FOR ANY CARE, TREATMENT, INTERVENTION, SERVICE OR ITEM, THE 28 PROVISION OF WHICH WAS FOR THE TREATMENT OF A HEALTH CONDITION 29 UNRELATED TO THE COVERED INDIVIDUAL'S AUTISM SPECTRUM DISORDER, 30 SHALL NOT BE APPLIED TOWARD ANY MAXIMUM BENEFIT ESTABLISHED 20070S0550B1211 - 18 -
1 UNDER THIS SUBSECTION. 2 (C) COVERAGE UNDER THIS SECTION SHALL BE SUBJECT TO 3 COPAYMENT, DEDUCTIBLE AND COINSURANCE PROVISIONS OF A HEALTH 4 INSURANCE POLICY OR GOVERNMENT PROGRAM TO THE EXTENT THAT OTHER 5 MEDICAL SERVICES COVERED BY THE POLICY OR GOVERNMENT PROGRAM ARE 6 SUBJECT TO THESE PROVISIONS. 7 (D) THIS SECTION SHALL NOT BE CONSTRUED AS LIMITING BENEFITS 8 WHICH ARE OTHERWISE AVAILABLE TO AN INDIVIDUAL UNDER A HEALTH 9 INSURANCE POLICY. 10 (E) THIS SECTION SHALL NOT APPLY TO THE FOLLOWING TYPES OF 11 POLICIES: 12 (1) ACCIDENT ONLY. 13 (2) LIMITED BENEFIT. 14 (3) CREDIT. 15 (4) DENTAL. 16 (5) VISION. 17 (6) SPECIFIED DISEASE. 18 (7) MEDICARE SUPPLEMENT. 19 (8) CHAMPUS (CIVILIAN HEALTH AND MEDICAL PROGRAM OF THE 20 UNIFORMED SERVICES) SUPPLEMENT. 21 (9) LONG-TERM CARE OR DISABILITY INCOME. 22 (10) WORKERS' COMPENSATION. 23 (11) AUTOMOBILE MEDICAL PAYMENT. 24 (12) HOSPITAL INDEMNITY. 25 (F) AS USED IN THIS SECTION: 26 (1) "APPLIED BEHAVIORAL ANALYSIS" MEANS THE DESIGN, 27 IMPLEMENTATION AND EVALUATION OF ENVIRONMENTAL MODIFICATIONS, 28 USING BEHAVIORAL STIMULI AND CONSEQUENCES, TO PRODUCE SOCIALLY 29 SIGNIFICANT IMPROVEMENT IN HUMAN BEHAVIOR, INCLUDING THE USE OF 30 DIRECT OBSERVATION, MEASUREMENT AND FUNCTIONAL ANALYSIS OF THE 20070S0550B1211 - 19 -
1 RELATIONS BETWEEN ENVIRONMENT AND BEHAVIOR. 2 (2) "AUTISM SERVICE PROVIDER" MEANS ANY PERSON OR GROUP THAT 3 PROVIDES TREATMENT OF AUTISM SPECTRUM DISORDERS. 4 (3) "AUTISM SPECTRUM DISORDERS" MEANS ANY OF THE PERVASIVE 5 DEVELOPMENTAL DISORDERS AS DEFINED BY THE MOST RECENT EDITION OF 6 THE DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM), 7 INCLUDING AUTISTIC DISORDER, ASPERGER'S DISORDER AND PERVASIVE 8 DEVELOPMENTAL DISORDER NOT OTHERWISE SPECIFIED. 9 (4) "DIAGNOSIS OF AUTISM SPECTRUM DISORDERS" MEANS MEDICALLY 10 NECESSARY ASSESSMENTS, EVALUATIONS OR TESTS IN ORDER TO DIAGNOSE 11 WHETHER AN INDIVIDUAL HAS AN AUTISM SPECTRUM DISORDER. 12 (5) "EVIDENCED-BASED RESEARCH" MEANS RESEARCH THAT APPLIES 13 RIGOROUS, SYSTEMATIC AND OBJECTIVE PROCEDURES TO OBTAIN VALID 14 KNOWLEDGE RELEVANT TO AUTISM SPECTRUM DISORDERS. 15 (6) "GOVERNMENT PROGRAM" MEANS ANY OF THE FOLLOWING: 16 (I) THE COMMONWEALTH'S MEDICAL ASSISTANCE PROGRAM 17 ESTABLISHED UNDER THE ACT OF JUNE 13, 1967 (P.L.31, NO.21), 18 KNOWN AS THE "PUBLIC WELFARE CODE." 19 (II) THE ADULT BASIC COVERAGE INSURANCE PROGRAM ESTABLISHED 20 UNDER CHAPTER 13 OF THE ACT OF JUNE 26, 2001 (P.L.755, NO.77), 21 KNOWN AS THE "TOBACCO SETTLEMENT ACT." 22 (III) THE CHILDREN'S HEALTH CARE PROGRAM ESTABLISHED UNDER 23 THIS ACT. 24 (7) "HEALTH INSURANCE POLICY" MEANS ANY GROUP HEALTH, 25 SICKNESS OR ACCIDENT POLICY OR SUBSCRIBER CONTRACT OR 26 CERTIFICATE ISSUED BY AN INSURANCE ENTITY SUBJECT TO ONE OF THE 27 FOLLOWING: 28 (I) THIS ACT. 29 (II) THE ACT OF DECEMBER 29, 1972 (P.L.1701, NO.364), KNOWN 30 AS THE "HEALTH MAINTENANCE ORGANIZATION ACT." 20070S0550B1211 - 20 -
1 (III) THE ACT OF MAY 18, 1976 (P.L.123, NO.54), KNOWN AS THE 2 "INDIVIDUAL ACCIDENT AND SICKNESS INSURANCE MINIMUM STANDARDS 3 ACT." 4 (IV) 40 PA.C.S. CH. 61 (RELATING TO HOSPITAL PLAN 5 CORPORATIONS) OR 63 (RELATING TO PROFESSIONAL HEALTH SERVICES 6 PLAN CORPORATIONS). 7 (8) "MEDICALLY NECESSARY" MEANS ANY CARE, TREATMENT, 8 INTERVENTION, SERVICE OR ITEM WHICH WILL, OR IS REASONABLY 9 EXPECTED TO, DO ANY OF THE FOLLOWING: 10 (I) PREVENT THE ONSET OF AN ILLNESS, CONDITION, INJURY OR 11 DISABILITY. 12 (II) REDUCE OR AMELIORATE THE PHYSICAL, MENTAL OR 13 DEVELOPMENTAL EFFECTS OF AN ILLNESS, CONDITION, INJURY OR 14 DISABILITY. 15 (III) ASSIST TO ACHIEVE OR MAINTAIN MAXIMUM FUNCTIONAL 16 CAPACITY IN PERFORMING DAILY ACTIVITIES, TAKING INTO ACCOUNT 17 BOTH THE FUNCTIONAL CAPACITY OF THE RECIPIENT AND THOSE 18 FUNCTIONAL CAPACITIES THAT ARE APPROPRIATE OF RECIPIENTS OF THE 19 SAME AGE. 20 (9) "PHARMACY CARE" MEANS MEDICATIONS PRESCRIBED BY A 21 LICENSED PHYSICIAN OR CERTIFIED NURSE PRACTITIONER AND ANY 22 EVALUATIONS OR TESTS DEEMED MEDICALLY NECESSARY TO DETERMINE THE 23 NEED OR EFFECTIVENESS OF THE MEDICATIONS. 24 (10) "PSYCHIATRIC CARE" MEANS DIRECT OR CONSULTATIVE 25 SERVICES PROVIDED BY A PSYCHIATRIST LICENSED IN THE STATE IN 26 WHICH THE PSYCHIATRIST PRACTICES. 27 (11) "PSYCHOLOGICAL CARE" MEANS DIRECT OR CONSULTATIVE 28 SERVICES PROVIDED BY A LICENSED PSYCHOLOGIST IN THE STATE IN 29 WHICH THE PSYCHOLOGIST PRACTICES. 30 (12) "REHABILITATIVE CARE" MEANS PROFESSIONAL, COUNSELING 20070S0550B1211 - 21 -
1 AND GUIDANCE SERVICES AND TREATMENT PROGRAMS, INCLUDING APPLIED 2 BEHAVIORAL ANALYSIS, WHICH ARE NECESSARY TO DEVELOP, MAINTAIN 3 AND RESTORE, TO THE MAXIMUM EXTENT PRACTICABLE, THE FUNCTIONING 4 OF AN INDIVIDUAL. 5 (13) "THERAPEUTIC CARE" MEANS SERVICES PROVIDED BY LICENSED 6 OR CERTIFIED SPEECH THERAPISTS, OCCUPATIONAL THERAPISTS OR 7 PHYSICAL THERAPISTS. 8 (14) "TREATMENT FOR AUTISM SPECTRUM DISORDERS" SHALL INCLUDE 9 THE FOLLOWING CARE PRESCRIBED, PROVIDED OR ORDERED FOR AN 10 INDIVIDUAL DIAGNOSED WITH AN AUTISM SPECTRUM DISORDER BY A 11 LICENSED PHYSICIAN OR PSYCHOLOGIST IF THE CARE IS DETERMINED TO 12 BE MEDICALLY NECESSARY: 13 (I) PSYCHIATRIC CARE. 14 (II) PSYCHOLOGICAL CARE. 15 (III) REHABILITATIVE CARE. 16 (IV) THERAPEUTIC CARE. 17 (V) PHARMACY CARE. 18 (VI) ANY CARE, TREATMENT, INTERVENTION, SERVICE OR ITEM FOR 19 INDIVIDUALS WITH AN AUTISM SPECTRUM DISORDER WHICH IS DETERMINED 20 BY THE DEPARTMENT OF PUBLIC WELFARE, BASED UPON ITS REVIEW OF 21 BEST PRACTICES OR EVIDENCED-BASED RESEARCH, TO BE MEDICALLY 22 NECESSARY AND WHICH IS PUBLISHED IN THE PENNSYLVANIA BULLETIN. 23 ANY SUCH CARE, TREATMENT, INTERVENTION, SERVICE OR ITEM WHICH 24 WAS NOT PREVIOUSLY COVERED SHALL BE INCLUDED IN ANY HEALTH 25 INSURANCE POLICY OR CONTRACT UNDER A GOVERNMENT PROGRAM 26 DELIVERED, ISSUED, EXECUTED OR RENEWED ON OR AFTER 120 DAYS 27 FOLLOWING THE DATE OF ITS PUBLICATION IN THE PENNSYLVANIA 28 BULLETIN. 29 (G) THE DEPARTMENT OF PUBLIC WELFARE SHALL PROMULGATE 30 REGULATIONS ESTABLISHING STANDARDS FOR QUALIFIED PROVIDERS OF 20070S0550B1211 - 22 -
1 AUTISM SERVICES. FOR PURPOSES OF IMPLEMENTING THIS SECTION, AND 2 NOTWITHSTANDING ANY OTHER PROVISION OF LAW, SECRETARY OF PUBLIC 3 WELFARE SHALL PROMULGATE REGULATIONS PURSUANT TO SECTION 4 204(L)(IV) OF THE ACT OF JULY 31, 1968 (P.L.769, NO.240), 5 REFERRED TO AS THE COMMONWEALTH DOCUMENTS LAW, WHICH SHALL, FOR 6 120 DAYS FROM THE EFFECTIVE DATE OF THIS ACT, BE EXEMPT FROM ALL 7 THE FOLLOWING ACTS: 8 (1) SECTION 205 OF THE COMMONWEALTH DOCUMENTS LAW. 9 (2) SECTION 204(B) OF THE ACT OF OCTOBER 15, 1980 (P.L.950, 10 NO.164), KNOWN AS THE "COMMONWEALTH ATTORNEYS ACT." 11 (3) THE ACT OF JUNE 25, 1982 (P.L.633, NO.181), KNOWN AS THE 12 "REGULATORY REVIEW ACT." 13 ONCE THE REGULATIONS ARE PROMULGATED, PAYMENT FOR THE TREATMENT 14 OF AUTISM SPECTRUM DISORDERS COVERED UNDER THIS SECTION SHALL 15 ONLY BE MADE TO AUTISM SERVICE PROVIDERS WHO MEET THE STANDARDS. 16 (H) TO THE EXTENT THAT THE DIAGNOSIS AND TREATMENT OF AUTISM 17 SPECTRUM DISORDERS ARE NOT ALREADY COVERED BY THE HEALTH 18 INSURANCE POLICY OR GOVERNMENT PROGRAM, COVERAGE UNDER THIS 19 SECTION SHALL BE INCLUDED IN HEALTH INSURANCE CONTRACTS AND 20 CONTRACTS UNDER A GOVERNMENT PROGRAM WHICH ARE DELIVERED, 21 EXECUTED, ISSUED, AMENDED, ADJUSTED OR RENEWED ON OR AFTER SIXTY 22 DAYS FROM THE EFFECTIVE DATE OF THIS SECTION, EXCEPT THAT THE 23 APPLICABILITY OF THIS SECTION TO GOVERNMENT PROGRAMS SHALL BE 24 CONTINGENT UPON FEDERAL APPROVAL IF NECESSARY. 25 SECTION 2116.1. TREATMENT OF AUTISM SPECTRUM DISORDERS.--(A) 26 EXCEPT FOR GOVERNMENT PROGRAMS, IF AN ENROLLEE HAS OBTAINED A 27 REFERRAL OR OTHER AUTHORIZATION THROUGH UTILIZATION REVIEW FROM 28 A MANAGED CARE PLAN OR A LICENSED INSURER TO RECEIVE ANY CARE, 29 TREATMENT, INTERVENTION, SERVICE OR ITEM FOR AN AUTISM SPECTRUM 30 DISORDER FROM A HEALTH CARE PROVIDER OR SPECIALIST, THE REFERRAL 20070S0550B1211 - 23 -
1 OR OTHER AUTHORIZATION SHALL CONSTITUTE A STANDING REFERRAL FOR 2 ANY SUBSEQUENT CARE, TREATMENT, INTERVENTION, SERVICE OR ITEM 3 PROVIDED BY ANY HEALTH CARE PROVIDER OR SPECIALIST UNTIL THE 4 CARE, TREATMENT, INTERVENTION, SERVICE OR ITEM FOR WHICH THE 5 REFERRAL OR AUTHORIZATION WAS APPROVED HAS REACHED ITS 6 CONCLUSION. 7 (B) IF A HEALTH CARE PROVIDER PROVIDES CARE, TREATMENTS, 8 INTERVENTIONS, SERVICES OR ITEMS TO AN ENROLLEE, THE COVERAGE OF 9 WHICH IS REQUIRED UNDER SECTION 635.2 AND THE PROVIDER IS 10 ENROLLED IN THE COMMONWEALTH'S MEDICAL ASSISTANCE PROGRAM BUT IS 11 NOT A NETWORK PROVIDER WITH THE ENROLLEE'S PRIVATE INSURANCE 12 PLAN, THE PROVIDER SHALL BE REIMBURSED UNDER THE TERMS AND 13 CONDITIONS APPLICABLE TO THE PLAN'S PARTICIPATING PROVIDERS. 14 THIS REQUIREMENT SHALL NOT BE SUBJECT TO ANY TIME LIMITATION OR 15 TRANSITION PERIOD, BUT SHALL OTHERWISE BE IN ACCORD WITH ALL 16 TERMS APPLICABLE TO NONPARTICIPATING PROVIDERS UNDER THE MANAGED 17 CARE CONTINUITY OF CARE PROVISIONS THEN IN EFFECT. 18 SECTION 2. SECTION 2121 OF THE ACT, ADDED JUNE 17, 1998 19 (P.L.464, NO.68), IS AMENDED TO READ: 20 SECTION 2121. PROCEDURES.--(A) A MANAGED CARE PLAN SHALL 21 ESTABLISH A CREDENTIALING PROCESS TO ENROLL QUALIFIED HEALTH 22 CARE PROVIDERS AND CREATE AN ADEQUATE PROVIDER NETWORK. THE 23 PROCESS SHALL BE APPROVED BY THE DEPARTMENT AND SHALL INCLUDE 24 WRITTEN CRITERIA AND PROCEDURES FOR INITIAL ENROLLMENT, RENEWAL, 25 RESTRICTIONS AND TERMINATION OF CREDENTIALS FOR HEALTH CARE 26 PROVIDERS. 27 (B) [THE] EXCEPT AS PROVIDED UNDER SUBSECTION (B.1), THE 28 DEPARTMENT SHALL ESTABLISH CREDENTIALING STANDARDS FOR MANAGED 29 CARE PLANS. THE DEPARTMENT MAY ADOPT NATIONALLY RECOGNIZED 30 ACCREDITING STANDARDS TO ESTABLISH THE CREDENTIALING STANDARDS 20070S0550B1211 - 24 -
1 FOR MANAGED CARE PLANS. 2 (B.1) PURSUANT TO SECTION 635.2(G), THE DEPARTMENT OF PUBLIC 3 WELFARE SHALL ESTABLISH STANDARDS TO BE UTILIZED BY MANAGED CARE 4 PLANS FOR THE CREDENTIALING OF HEALTH CARE PROVIDERS PROVIDING 5 CARE, TREATMENTS, INTERVENTIONS, SERVICES OR ITEMS TO ENROLLEES 6 FOR AN AUTISM SPECTRUM DISORDER AS DEFINED UNDER SECTION 635.2. 7 IN ADDITION, THE DEPARTMENT MAY REQUIRE THAT A MANAGED CARE PLAN 8 GRANT CREDENTIALS TO ANY HEALTH CARE PROVIDER WHOM THE 9 DEPARTMENT OF PUBLIC WELFARE DETERMINES MEETS OR EXCEEDS THE 10 DEPARTMENT OF PUBLIC WELFARE'S CREDENTIALING STANDARDS. 11 (B.2) WITH RESPECT TO AUTISM SERVICE PROVIDERS, A MANAGED 12 CARE PLAN OR LICENSED INSURER SHALL INFORM CREDENTIALING 13 APPLICANTS OF A DECISION WITHIN NINETY DAYS AFTER THE COMPLETE 14 APPLICATION HAS BEEN SUBMITTED TO THE MANAGED CARE PLAN OR 15 INSURER. A MANAGED CARE PLAN OR INSURER SHALL NOT REQUIRE A 16 HEALTH CARE PROVIDER TO SUBMIT AN APPLICATION FOR CREDENTIALING 17 AS A RESULT OF A CHANGE OF EMPLOYERS IF THE PROVIDER'S NEW 18 EMPLOYER IS IN THE MANAGED CARE PLAN'S SERVICE AREA OR NETWORK. 19 (C) A MANAGED CARE PLAN SHALL SUBMIT A REPORT TO THE 20 DEPARTMENT REGARDING ITS CREDENTIALING PROCESS AT LEAST EVERY 21 TWO (2) YEARS OR AS MAY OTHERWISE BE REQUIRED BY THE DEPARTMENT. 22 (D) A MANAGED CARE PLAN SHALL DISCLOSE RELEVANT 23 CREDENTIALING CRITERIA AND PROCEDURES TO HEALTH CARE PROVIDERS 24 THAT APPLY TO PARTICIPATE OR THAT ARE PARTICIPATING IN THE 25 PLAN'S PROVIDER NETWORK. A MANAGED CARE PLAN SHALL ALSO DISCLOSE 26 RELEVANT CREDENTIALING CRITERIA AND PROCEDURES PURSUANT TO A 27 COURT ORDER OR RULE. ANY INDIVIDUAL PROVIDING INFORMATION DURING 28 THE CREDENTIALING PROCESS OF A MANAGED CARE PLAN SHALL HAVE THE 29 PROTECTIONS SET FORTH IN THE ACT OF JULY 20, 1974 (P.L.564, 30 NO.193), KNOWN AS THE "PEER REVIEW PROTECTION ACT." 20070S0550B1211 - 25 -
1 (E) NO MANAGED CARE PLAN SHALL EXCLUDE OR TERMINATE A HEALTH 2 CARE PROVIDER FROM PARTICIPATION IN THE PLAN DUE TO ANY OF THE 3 FOLLOWING: 4 (1) THE HEALTH CARE PROVIDER ENGAGED IN ANY OF THE 5 ACTIVITIES SET FORTH IN SECTION 2113(C). 6 (2) THE HEALTH CARE PROVIDER HAS A PRACTICE THAT INCLUDES A 7 SUBSTANTIAL NUMBER OF PATIENTS WITH EXPENSIVE MEDICAL 8 CONDITIONS. 9 (3) THE HEALTH CARE PROVIDER OBJECTS TO THE PROVISION OF OR 10 REFUSES TO PROVIDE A HEALTH CARE SERVICE ON MORAL OR RELIGIOUS 11 GROUNDS. 12 (F) IF A MANAGED CARE PLAN DENIES ENROLLMENT OR RENEWAL OF 13 CREDENTIALS TO A HEALTH CARE PROVIDER, THE MANAGED CARE PLAN 14 SHALL PROVIDE THE HEALTH CARE PROVIDER WITH WRITTEN NOTICE OF 15 THE DECISION. THE NOTICE SHALL INCLUDE A CLEAR RATIONALE FOR THE 16 DECISION. 17 SECTION 3. THIS ACT SHALL TAKE EFFECT IN 60 DAYS. B28L40MSP/20070S0550B1211 - 26 -