RE: A.G. OPIN. 90-003: "COMPARABLE" HEALTH INSURANCE COVERAGE.
THIS LETTER IS IN RESPONSE TO YOUR REQUEST FOR AN INFORMAL OPINION EXPLAINING SOME OF THE RAMIFICATIONS OF ATTORNEY GENERAL OPINION 90-003 AND ONE OF THE STATUTES THAT OPINION INTERPRETS, 70 Ohio St. 5-117.5 (1990). IN YOUR REQUEST YOU ASK (1) WHETHER AN INSURER OTHER THAN THE STATE INSURANCE PLAN MAY BE REQUIRED TO ACCEPT ALL APPLICANTS AT THE TIME OF INITIAL ENROLLMENT, REGARDLESS OF PREEXISTING CONDITIONS; (2) WHETHER IT IS MANDATORY THAT AN EMPLOYEE OF A SCHOOL DISTRICT JOIN A DISTRICT'S HEALTH PLAN; (3) WHETHER THE OFFICE OF PUBLIC AFFAIRS ("OPA") MAY CONSIDER THE FINANCIAL STABILITY OF THE INSURER IN DETERMINING IF INSURANCE IS "COMPARABLE"; AND (4) WHETHER A SCHOOL DISTRICT, AFTER OPA HAS REVIEWED THE COVERAGE OFFERED BY AN "OTHER" INSURER AND DETERMINED THAT THE PLAN IS NOT COMPARABLE, ACCEPT COVERAGE UNDER THE PLAN.
1 ACCEPTANCE OF ALL APPLICANTS.
IT IS MY UNDERSTANDING THAT, AT PRESENT, THE STATE INSURANCE PLAN ACCEPTS ALL EMPLOYEES OF THE SCHOOL DISTRICT AT THE TIME OF INITIAL ENROLLMENT. ACCORDINGLY, UNDER THE STATE PLAN, ALL DISTRICT EMPLOYEES ARE COVERED, REGARDLESS OF WHETHER THOSE EMPLOYEES SUFFER FROM PREEXISTING CONDITIONS. SOME INSURERS, HOWEVER, PRE-SCREEN APPLICANTS AND REFUSE TO TAKE THOSE WHO HAVE PREEXISTING CONDITIONS. YOU ASK WHETHER THESE INSURERS MAY BE REQUIRED TO ACCEPT ALL APPLICANTS IN THE SAME MANNER THAT THE STATE INSURANCE PLAN DOES.
IN A.G. OPIN 90-003, WE SET FORTH SEVERAL FACTORS WHICH SHOULD BE CONSIDERED IN DETERMINING COMPARABILITY. THESE INCLUDED THE SUBJECT MATTER OF THE INSURANCE AND THE RISK INSURED AGAINST, I.E., THE COVERAGE. AS 70 Ohio St. 5-117.5 SPEAKS IN TERMS OF THE EMPLOYEES AS A GROUP, THE "GROUP" OF EMPLOYEES IS THE PROPER CATEGORY FOR ANALYSIS OF THESE FACTORS. AND CLEARLY, THE EXCLUSION OF CERTAIN SEGMENTS OF THE GROUP WILL BEAR UPON THE "COMPARABILITY" OF THE SUBJECT MATTER AND COVERAGE OFFERED BY A PLAN.
COMPARABILITY OF PLANS IS A FACTUAL EVALUATION TO MADE BY OPA AND OPA POSSESSES A GREAT DEGREE OF LATITUDE MAKING THIS DETERMINATION. ACCORDINGLY, A DETERMINATION BY OPA THAT PLANS WHICH DO NOT ACCEPT ALL APPLICANTS ARE NOT COMPARABLE TO THE STATE PLAN, AND ARE THEREFORE UNACCEPTABLE, WOULD PROPERLY LIE WITHIN THE DISCRETION OF OPA.
2. MANDATORY INSURANCE COVERAGE.
BY ITS OWN TERMS, 70 Ohio St. 5-117.5 MANDATES THE PROVISION OF HEALTH INSURANCE FOR ALL DISTRICT EMPLOYEES. NEITHER THE STATUTE NOR A.G. OPIN. 90-3, HOWEVER, SPECIFICALLY ADDRESSES WHETHER THE EMPLOYEES MUST ACCEPT THE COVERAGE.
AS I READ THE STATUTE, THE MOST PROBABLE IMPLICATION WOULD BE THAT THE EMPLOYEES WOULD HAVE TO ACCEPT COVERAGE UNDER THE DISTRICT'S PLAN. HOWEVER, THERE IS THE POSSIBILITY THAT SCHOOL DISTRICTS COULD, PURSUANT TO 70 Ohio St. 5-140 (1981), EXEMPT EMPLOYEES FROM MANDATORY PARTICIPATION IN THE INSURANCE PROGRAM. A FULLER EXPLORATION OF THIS POSSIBILITY IS OUTSIDE THE SCOPE OF THE PRESENT CORRESPONDENCE.
3. FINANCIAL STABILITY OF INSURER.
ALTHOUGH A.G. OPIN. 90-003 DID NOT SPECIFICALLY DISCUSS THE FINANCIAL STABILITY OF THE INSURER AS A FACTOR TO BE EVALUATED IN DETERMINING COMPARABILITY, IT SHOULD BE NOTED THAT THE OPINION SOUGHT ONLY TO SET FORTH THE FACTORS THAT SHOULD "AT MINIMUM" BE CONSIDERED. THUS, A.G. OPIN. 90-003 DOES NOT PRECLUDE CONSIDERATION OF OTHER FACTORS WHICH OPA MAY CONCLUDE ARE RELEVANT.
IN THE EVENT OPA DETERMINES THAT THE FINANCIAL STABILITY OR THE SOUNDNESS AND SAFETY OF AN INSURER WHO SPONSORS A PLAN IS RELEVANT TO THE COMPARABILITY OF THE PLAN TO THE STATE INSURANCE PLAN, OPA WILL BE ENTITLED TO INQUIRE INTO THIS FACTOR. AND AS POINTED OUT ABOVE, OPA WILL HAVE A GREAT DEGREE OF LATITUDE IN MAKING FACTUAL DETERMINATIONS RELATING TO SUCH MATTERS.
4. DETERMINATION THAT PLANS ARE NOT COMPARABLE.
IN A.G. OPIN. 90-003, THIS OFFICE CONCLUDED THAT "A DETERMINATION BY THE OFFICE OF PUBLIC AFFAIRS THAT POLICIES ARE COMPARABLE, OR ALTERNATIVELY, COMPLIANCE WITH GUIDELINES THAT MAY BE PROMULGATED BY THAT BODY IS A PREREQUISITE TO THE ACCEPTANCE OF ANY 'OTHER' COVERAGE." THUS, IN THE ABSENCE OF A POSITIVE DETERMINATION BY OPA THAT A PARTICULAR PLAN IS COMPARABLE, A SCHOOL DISTRICT IS NOT AUTHORIZED TO ACCEPT THE PLAN. CORRESPONDINGLY, IT IS CLEAR THAT IF OPA AFFIRMATIVELY FINDS THAT A PLAN IS NOT COMPARABLE TO THE STATE PLAN, A SCHOOL DISTRICT MAY NOT LAWFULLY ACCEPT COVERAGE UNDER THE PLAN.
(K. W. JOHNSTON)