I.
LEGISLATIVE
PERSPECTIVE
This was a difficult year
to be pro-active
legislatively. In most cases,
insurers and the
business community were
forced to play defense
in a volatile and uncertain
political environment. Virtually everything
that happened
in the Capitol has been
overshadowed
by three events:
(1) the recall
of Governor Gray Davis; (2) the
$38 billion state budget
deficit; and (3) the
workers' compensation
insurance crisis.
The
state budget
crisis was one of the
events that helped
to foment the
recall movement. Given the
extraordinary impact of the
recall election
and budget crisis, partisan politics became
even sharper
than usual. The
effect of term
limits and "safe" legislative
districts that tend to punish moderate
candidates from either
party created
a dysfunctional legislature
that made it virtually impossible
to accomplish anything worthwhile.
Given
this backdrop, it is most impressive
that insurers and the
business community were
successful in dealing
with the third major crisis by supporting a
workers' compensation
insurance reform
package.
The Governor
signed two bills, AB 227 and SB 228, that are
expected
to stabilize the
worker' compensation
insurance market
and create a
platform for consideration of additional reform
next session.
The
Governor, faced
with the recall,
abandoned most of his moderate
tendencies
and moved left
in an attempt to shore
up his base with labor, trial lawyer
and consumer groups. Thus, the
Governor signed
anti-business legislation
such as SB 2 (Burton), which requires
employers to
provide health
insurance for their
employees.
While
insurers and the
business community did suffer
some losses,
the amount of anti-business
bills that were
killed or neutralized
was exceptional. Rate regulation
of health insurance
failed, as did a prior approval requirement
for insurance advertising. An effort to
prohibit the sale
of annuities, life
settlements
and corporate owned
life insurance
products were
narrowed in scope
so that these
products can continue to be
available, although under
some new restrictions. Efforts to expand
unfair competition lawsuits also failed,
as did efforts to regulate
underwriting standards in the
homeowners
insurance market.
II. WORKERS' COMPENSATION INSURANCE REFORM
In the
final week of
the legislative
session, four Democrats
on the workers'
compensation insurance
conference
committee inked
their names
to a conference
report made
up of two key bills: AB 227 (Vargas) and SB
228 (Alarcon). The
two Republicans on the
committee abstained,
signaling the view
of the Republican
caucus and many in the business
community the deal
hashed out by various Democratic
factions was a half-loaf and better
than nothing. The
Governor signed
the bills.
The legislation
is almost old news already,
with most parties preparing
to work on the "sacred
cows" that were
not touched this year.
- Summary of the Conference Committee Report
The
highlights
of the reform
bill are as follows:
·
Establishes a fee
schedule for
outpatient surgery
centers at
120% of Medi-Cal.
·
Reduces
medical provider
rates by 5% unless
at or below Medi-Cal
rates.
·
Pharmacy services
limited to 100% of Medi-Cal.
·
Limits chiropractic and physical therapy
visits to 24 visits per claim.
·
Replaces
the existing
vocational rehabilitation program which provided
benefits
ranging from $10,000-16,000 with and educational
voucher worth $4,000-$10,000 depending
on the level
of disability and whether
modified work is offered. No more than
10% of the voucher
can be used
for vocational or return to work counseling.
·
Establishes
utilization review,
independent
review and second
opinion processes
to reduce the
cost and delay of medical
care disputes.
·
Eliminates the
treating physician's presumption
for injuries which occurred
between
1994 and 2003 (the presumption
was eliminated
for all future claims as part of last year's
$3.5 billion benefit
increase
bill.) The
presumption still applies
to pre-designated
physicians, a significant loophole.
·
Requires
employers,
who funded 20% of the
administration of the workers'
compensation insurance
system, to fund 100% of the
system.
This is an additional $80 million employers
will have to pay, but will allow implementation
of administrative reforms
that were
stalled because
of lack of funding.
·
Exempts CIGA
from paying penalties
assessed
against insurers that later
became insolvent.
·
Authorizes up
to $1.5 billion in bonds to be issued
on behalf of CIGA to resolve
expected
short-term cash flow problems
due to the
high number of insolvencies.
·
Exempts the
State Compensation
Insurance Fund from hiring freezes.
·
Limits litigation by allowing labor unions and
management to
agree on alternative
dispute resolution
procedures.
·
Reduces
the time for
insurers to pay medical
bills from 60 days to 45 days and increases
penalties for
late payments.
·
Requires
the Insurance
Commissioner to take
into account the bill's reforms
when approving advisory pure
premium rates
and requires
the WCIRB to determine
the cost savings
of the reforms. Insurers
would be required
to certify their
rates reflect
those cost savings.
·
Requires
CHSWC to study the feasibility
of imposing a minimum rate law to be
phased in over
five years.
- Estimated Cost Savings
Depends
who you talk to. Insurance
Commissioner John Garamendi
said he believed
the bill, once
fully implemented
would achieve
between
$5-6 billion in annual savings and one time
savings of $5.3 billion. He
said his actuaries were
conservative
in developing
the estimates,
and he believes
the ultimate
savings will be closer
to $6 billion.
These
numbers are
about what Assembly Insurance
Committee
Chairman Juan Vargas all along said was his goal. The savings
are more than
the $2-3 billion some
liberal Democrats
wanted, and far short of the
$11 billion set by Republicans.
The
Commissioner estimated
the bill's reforms
would eliminate
the need
for the proposed
12.7% increase
in the advisory pure
premium rate effective
January 1, 2026. He said he
was "comfortable" the
reforms would also roll back the
7% increase
that was effective
July 1, 2026, and held
out hope for further
cutbacks once the
hard to "score" reforms
such as utilization review
and alternative
dispute resolution
kicked in.
The
Commissioner said the
one time
savings of $5.3 billion would not be immediately
reflected
in premiums, but would shore
up the health
of insurers, especially
the State
Fund. He
did note, however,
that as insurers restored
their health,
that would have an impact on premiums. It would also help
bring stability to the marketplace
and encourage
other insurers
to come to California.
Republicans,
however, immediately
questioned the
numbers.
They have
always cautioned that avoiding major changes
would result in piece-meal
reforms that were
little more
than window dressing. They noted
the WCIRB has only identified
$3.5 billion of savings. The
WCIRB says that many of the cost
savings will be difficult,
if not impossible, to score
because their
impact is unknown.
- Winners and Losers
The
workers' compensation
insurance crisis became
one of the
most hotly contested
issues this year. California's
workers' compensation
insurance system
is the most expensive
in the nation, and yet
provides some
of the lowest
benefits, a
clear indication that lots of money
is going to third parties. These
various interest
groups spent enormous
amounts of time and effort
protecting their
piece of the
pie and trying to shift the
focus of cost-cutting efforts to others. Now that the
deal is done,
it's possible to tally up this year's
winners and losers
in the game
of workers' compensation
insurance reform.
1.
Winners
·
Insurance Agents
& Brokers: A proposal to cap insurance
agent broker
commissions was taken off the
table.
Agents and brokers
were the
only major group that escaped
a "haircut" in the bill. Agents and
brokers, however,
argued they were
the first group to take
a haircut when the
Commissioner ordered
the State
Fund to lower commission rates,
with the rest
of the market
following in driving commissions down.
·
Insurers: Despite
plenty of rhetoric,
the committee
ultimately rejected
a statutory premium rollback, premium
cap or rate regulation.
·
Labor: Preserved
the $3.5 billion benefit
increase they
won last year by sponsoring the
strict fee
schedule on
outpatient surgery
centers that
was ultimately adopted
and is expected
to save about $932 million annually.
·
CIGA: Got
the $1.5 billion bonding authority they
needed
to resolve their
short-term cash flow problems
caused by the
latest rash of insolvencies
without having to increase
the 2% assessment. Were
also exempted
from outrageous penalties
for technical violations made
by insurers that later
became the
responsibility of CIGA. These
penalties
amount to millions of dollars.
·
Attorneys:
Insurers are
assessed late
penalties on
the entire
benefit award
even though
only one payment
is late.
A proposal to assess the
penalty against just the
late payment,
and not the entire
award, was changed at the
last minute to apply only to CIGA, not all
insurers.
These
penalties
amount to millions of dollars and are a huge
profit center
for attorneys.
Attorneys were
also able to keep
litigation alive and well
in the system
by keeping a
loophole that provides
a treating physician a presumption
of correctness
if the physician is predesignated. The attorney's
win, however,
was mitigated buy a follow-up bill pushed
through by Assemblyman Vargas that provided
insurers a safe-harbor
from the late
penalties if
they are
complying with utilization review
procedures
provided for in the
bill.
·
Insurance
Commissioner John Garamendi:
The conference
committee appeared
deadlocked in
the last few
days of the session. By all accounts, the
Insurance Commissioner
was the one
who kept legislators'
feet to the
fire and helped
broker the
final deal.
He reportedly
was calling members
as the deal
was falling apart from a hospital hallway while
attending to an ill family member. He personally
drafted language,
and promised to put his credibility
on the line
by vouching for the $5-6 billion in
savings. In return,
the committee
nixed a proposal to transfer
the DOI's workers'
compensation insurance
fraud money and staff to the
Attorney General.
2.
Losers
·
Outpatient Surgery
Centers: These
centers are
the only providers
not subject
to a fee schedule,
and costs naturally have been
going through the roof. The original
proposal was to establish a fee
schedule at
120% of Medi-Cal, but everyone
expected
that was just an opening negotiating
number.
The surgery
centers were
pushing for 165% of Medi-Cal, and it appeared
a compromise was in the
works to settle
at 150%. The
surgery centers,
however, over-played
their hand by involving Assembly
Speaker Herb
Wesson.
In the end,
he couldn't protect
them, and they
got stuck with 120%.
·
Speaker
Herb Wesson:
The Speaker
is termed out
next year,
and has wanted to stay on as Speaker
instead of allowing for a transition ahead
of next year's
elections. There
is a succession battle
underway among the
majority Democrats who have
enough votes
to elect the
Speaker. Many moderate
Democrats, members
of the Latino caucus, have
been unhappy
with the Speaker's
leadership and
are angling to replace
him with one of their
own. When
the Speaker
tried to stop a drastic fee
schedule from
being imposed
on the outpatient
surgery centers,
several members
of the conference
committee refused
to go along and were
willing to close down the
conference
committee
without a reform bill. The Speaker,
faced with panicking members
who would have faced
angry voters, caved
rather than be
ousted by members
of his caucus who wanted a reform
bill at any cost.
·
Vocational Rehabilitation
Providers: The
vocational rehabilitation mandate
has been eliminated
in favor of providing $4,000-$10,000, depending
on the level
of disability, for education. Counseling fees
are limited
to 10% of this amount.
·
SCIF:
While the
State Fund received
an exemption
from the hiring freeze,
they were
unable to dump the
Risk Based Capital standards imposed
last year and weren't
able to get
out from under the
Commissioner's regulatory
thumb.
3.
Draw
·
Chiropractors:
An injured worker
who is treated
by a chiropractor receives
an average of
34 treatments,
more than twice
the national average. The original
proposal was to cap visits at 15. The
deal caps visits at 24. The cap, however,
is not "hard." A physician can
approve additional visits. In addition, there
is a fear that chiropractors will now routinely
increase the
number of treatments
to the cap of 24. Thus, the ceiling
could become
the floor.
It could have been
much worse for the
chiros.
·
Employers: They win to
the extent
rates won't go up much next
year, and in the
best case scenario
may drop to last summer's
levels. However,
reform that merely
produces last summer's
rates can hardly be
called a "win." Those rates
lock in the huge
increases of
the last couple
of years.
- 2004 Landscape
The
old saw is that workers' compensation
insurance "reform"
only happens once
a decade. However,
no one is crowing this reform
package solves
the crisis.
The most optimistic estimates
have these
reforms returning
rates to the
super-inflated
levels of last
summer, a still deplorable
situation. Even
the bill's most ardent
supporters indicated
that further reforms
would be necessary
in the years
to come.
Insurance
Commissioner John Garamendi
said it took many years of inattention
to get to where
we are today,
and it will take many more
years to get
the system
back in shape.
Assemblyman Juan Vargas said this bill
was only a first, while significant, step. He noted
that after the
1993 reforms, everyone
let their
guard down thinking they had fixed
the system.
Senator
Poochigian, who did not vote for the
conference
report, issued
a list of reforms that still
needed
to be acted
on:
·
Mandated objective
medical findings to determine
permanent
disability.
·
Rationalize the
permanent
disability rating system by infusing fairness,
consistency and objectivity.
·
Provide the
employer the
right to choose the
medical provider
for 365 days, rather than 30 days.
·
Correct the
definition of what it means
to "cure and relieve"
injured employees
so that it is evidence-based.
·
Suspend the
COLA growth included in temporary
disability, beginning in 2006.
·
Curtail the
abuse of stress
claims.
·
Eliminate
non-work related
injuries from the
system (establish
a predominate
cause standard.)
·
Curb litigation costs.
·
Require
apportionment when
injury is to the same
part of the body.
·
Prohibit prisoners
from receiving
workers' compensation.
In addition to further
legislation, all eyes
will be on how insurers
respond to the
reforms.
In the words of the
Insurance Commissioner,
a "bright light" will be focused
on insurers next
year.
While insurers
escaped rate
regulation and re-imposition
of the minimum rate
law, the Legislature
is definitely
headed that
direction unless
premiums start to fall.
E. Workers' Compensation Insurance Broker Fee Cap Proposal Challenged
Broker
commissions very nearly
became one
of the "cost savings"
in the workers'
compensation insurance
reform package. The six members
of the conference
committee were
clearly feeling
the pressure
to cut costs in the system. This set off
a round of interest
groups trying to protect their
turf and characterize
others in the
system as having plenty
of fat to cut. For example,
an estimated
1,000 chiropractors descended
on the Capitol to try and stop a proposal to
limit chiropractor visits to 15 unless another
physician concludes further
treatments are
necessary.
Various interest
groups also distributed a chart
showing agent and broker
fees at 11.9%
of the total costs in the
workers' compensation
insurance system. This prompted
some conference
committee members
to suggest that insurance
agents and brokers
needed
to take a "haircut" just like
everybody else
in the system. They proposed
capping broker fees
to bring premium costs down.
The
Insurance Agents
and Brokers Legislative
Council ("ABL") quickly discredited
the misinformation that broker
fees are
11.9% in the workers'
compensation insurance
system.
Upon further investigation,
it was discovered
that the source
of the chart, the
California Workers' Compensation
Institute (CWCI), erred
by lumping "Other Acquisition Expenses"
of 3.4% in the "Agent
& Broker Fees"
category when
these
"Other Acquisition Expenses"
are insurer
marketing and sales
expenses. They are
not paid to agents or brokers. Upon notification of the
error, CWCI immediately
issued a corrected
chart showing "Agent
& Broker Fees"
representing
8.5% instead of 11.9%.
ABL, however,
pointed out to conference
committee members
that even the
revised CWCI
chart substantially overstated
"Agent & Broker
Fees." The CWCI did
not include categories
of data from the Workers'
Compensation Insurance
Rating Bureau (WCIRB). Including this data further
reduced the
commission level
to 7.1% of 2002 earned
premium.
Additionally, when commissions are
more appropriately
placed in the
context of what insurers
actually paid out in losses and expenses
in 2002, which was 121.6% of premium, the
WCIRB concluded that "Agent
& Broker Fees"
represented
5.8%.
The
conference
committee members
were also
told that “Agent & Broker
Fees” have
dropped well
below 5.8% this year. The State
Compensation Insurance
Fund, which writes 50-60% of the
market, according to the
Insurance Commissioner,
has reduced
commissions to a scale with a maximum of 5.5% that drops to 0% (zero) for 78 employer
classifications with the highest
premiums.
Private insurers
are similarly driving commission rates
down.
Thus, ABL
argued the
proposal to cap commissions will provide only
illusory savings since the
market has already
driven commission rates
below a fair level
of compensation for the
value that brokers
and agents provide
their clients
and insurers.
ABL again pointed out that agents
and brokers provide
services for
insurers and employers
that save
hundreds of millions in losses
and help employees
return to work more
quickly and productively. These
services
include risk assessment,
underwriting, risk control, claims management,
loss prevention
and loss control, and mediating disputes
involving payroll, classifications and audits.
The
issue came up
publicly when Senator
Alarcon, the Co-Chair of the
Conference
Committee,
asked a representative
of the State
Fund during a hearing if it was possible
to save $120 million by eliminating
broker commissions. State Fund defended
the commissions by saying that brokers
provide better
business and provide
services they
could not replace
at current staffing
levels. Thus, State
Fund concluded eliminating
brokers commissions would not result
in any meaningful savings.
III.
PRIVACY
RULES
A.
Landmark Compromise on Privacy Restrictions Achieved
After
four years of intense
struggle and negotiation,
California has adopted the
toughest privacy law in the
nation. The
Legislature
acted with urgency
after finally coming to a compromise
with most of the financial services
industry and to meet
a deadline to
stop an even
more draconian privacy initiative
that would have brought many financial
transactions to a standstill.
Privacy
advocates successfully
gathered
almost 600,000 signatures to place
a severe
privacy initiative on the
March 2004 ballot. However,
Chris Larsen, the
founder of E-Loan who funded
the initiative
drive, said he
would not submit the
signatures if a legislative
solution were
reached.
While
the compromise
addresses
many of the concerns
of insurers, insurers
continue to work for a national standard. In summary, SB 1 now requires
a financial institution to obtain the consent
of a consumer before
it may share personal
information with any nonaffiliated third party (opt-in). While
consent is not required
to share information with an affiliate or joint marketing partners, the
consumer must be
provided with the
opportunity to direct that personal
information not be disclosed
(opt-out). The
bill provides for unrestricted
sharing of information between
a financial institution and its wholly owned
financial subsidiaries in the same line of business defined
as one of the
following: insurance, banking or securities.
(no-opt).
The
bill contains several
transactional exemptions. In addition, exemptions
are provided
for transactions covered
by the federal
Real Estate Settlement
Procedures
Act, financial planning services
provided pursuant to agreement,
sharing of information between
insurers and exclusive
agents, and insurance
producers and securities
brokers acting within the
scope of their
license. The bill
also provides an exemption
for insurance agents
and brokers shopping for quotes.
SB 1 is currently
in danger of being
preempted
by federal legislation
pending in Congress. The Fair Credit
Reporting Act, as passed
by the U.S. House
of Representatives,
would gut the state's
law. Governor
Davis recently
sent a letter
to Congress urging them
to adopt SB 1 as a model for the
nation rather than gut it. In addition, Senator
Speier and
California privacy advocates are
actively lobbying Congress
on this issue.
B.
Department Privacy Regulations Conflict With SB 1
On March 24, 2003, the
Department of
Insurance adopted
regulations regulating
the information practices
of insurers and agents
and brokers.
Now that SB 1 has been
enacted, several
provisions of the regulations
conflict with the new
law. The
Department of
Insurance is beginning
the review
process to make
any necessary
revisions so the
regulations will be
consistent with SB 1.
One
of the most important conflicts in the
regulations involve
shopping insurance quotes. SB 1 authorizes
insurance agents
and brokers to seek
competitive
insurance quotes
for clients and prospective
clients without having to comply with opt-in
procedures. The Department's
regulations, however,
conflict with SB 1 by requiring a formal
opt-in procedure.
The
conflicting regulations do not provide
additional consumer protection
because
consumers expect
and intend an independent
insurance agent
or broker to shop for a more
competitive
insurance rate,
better coverage
and better service. Requiring a
costly and duplicative opt-in procedure
for shopping quotes is burdensome
for both agents and consumers
since the
whole point of the
relationship is to shop for quotes
and obtain better
service.
IV. RESTRICTIONS ON UNDERWRITING
A. Homeowner's Insurance Focus of Legislators and Regulators
Underwriting
practices in the
homeowners
insurance market
became a high
profile issue
this year, and will be
sure to garner
further attention
next year. Prior to the
beginning of this year's
legislative session,
the Senate
Insurance Committee
held a hearing
entitled
"Haunted Houses:
Does making a claim make
a home uninsurable?" Soon after,
Insurance Commissioner
John Garamendi decried
in his inaugural speech
the practice
of non-renewing
homeowners'
policyholders after
filing a claim, the so-called
"use it and lose
it" syndrome. A rash of bills was promptly introduced
addressing underwriting
issues.
Senator
Jackie Speier,
Chair of the Senate
Insurance Committee,
authored the
most important bill on the issue,
SB 64. The
bill would have prohibited
insurers and agents
from refusing to offer
or renew homeowners'
policy because
of an inquiry about coverage
or the possibility of filing a claim. The Senator's
informational hearing was replete
with examples
of consumers who contacted
their agent
or insurer to inquire
about their deductibles
and whether
it would be worth it to file
a claim. These
consumers were
later nonrenewed
or denied coverage
with another company, even
though they ultimately
did not file a claim, because
their informal inquiry was deemed
a "notice of claim."
More
importantly, the bill would have
imposed a "take
all comers" provision for homeowners
insurance and ceded
to the Insurance
Commissioner the
ability to regulate
underwriting standards. The Insurance
Commissioner would define,
through regulation, which physical characteristics
make a home
uninsurable.
In addition, an insurer's underwriting
standards would be provided
to the Insurance
Commissioner and available
to the public.
SB 64 (Speier)
was narrowly defeated
in the Assembly
Insurance Committee
after easily
passing out of the State
Senate. As a result,
the subject
is sure to be
reincarnated
next year in
the form of a new
bill.
The
Legislature,
however, did
act in this area despite
the failure
of SB 64:
·
AB 1049
(Calderon & Wyland): Prohibits insurers
or agents from basing an adverse
underwriting decisions
on the fact that an individual has previously
inquired about the
scope of homeowners
insurance coverage
and the inquiry was logged
in an insurer database,
and no claim was ultimately filed. Chapter 442.
·
AB 1191
(Wiggins): Requires
insurers to provide
policyholders with the
reasons for the
nonrenewal of
their homeowner's
insurance policies
and requires
insurers to provide
policyholders, upon request,
with the reasons
for the change
in their annual premium. Chapter 571.
Regarding
AB 1049, the bill is an example
of bi-partisan efforts to negate
extreme
legislation such as SB 64. Assemblyman
Wyland, a Republican, and Assemblyman
Calderon, a Democrat,
jointly authored AB 1049. The bill
passed with bi-partisan support and without a
negative vote
despite concerns
expressed
by some legislators
that inquiries about coverage
and no-pay claims indicate some
event occurred,
and an insurer should be
able to consider
that information when projecting
future risk of loss. The bill
passed, however,
as part of a larger strategy
to have a moderate
response to
SB 64 (Speier),
discussed above.
Another hard-fought issue
this year involving underwriting
centered
on the use of
credit scoring. A bill banning the
use of credit
scoring in underwriting, SB
691 (Escutia), followed a path similar to SB
64 (Speier). SB 691 sailed
out of the Senate,
but was stopped in the
Assembly Insurance
Committee because
moderate legislators
were frustrated
at the author's unwillingness
to negotiate. Many of the
opponents said they
could live with limitations on the
use of credit
information, but not a complete
ban. They
endorsed a
model law developed
by the National Conference
of Insurance Legislators
(NCOIL) to ensure
credit scores
are used
fairly and in a nondiscriminatory manner. Senator
Escutia refused
to budge, and the
bill fell three
votes short of the
amount needed
to pass.
B.
Regulatory Restrictions
Insurance
Commissioner John Garamendi
attempted
this year to circumvent
the legislative
process.
He issued
an "Advisory Notice" earlier
this year limiting the
use of claims information in underwriting. Senator Speier
in SB 64 adopted much of the
language in the
advisory notice.
Insurers
filed suit against the
Commissioner on the
grounds the "Advisory Notice"
was an underground regulation
with no statutory authority. The
court granted a preliminary
injunction, and the Commissioner
responded by
filing emergency
regulations on the
subject.
The court refused
to enjoin the
implementation
of the emergency
regulations, reasoning
an "emergency"
existed at the
discretion of the
Commissioner.
However,
a month later, the
court concluded that while
an emergency
may have existed,
the Commissioner
still did not have the
authority to regulate
underwriting practices. Interestingly,
the court relied
on the fact that SB 64 failed,
an indication the Commissioner
needed
statutory authority to move forward with his regulations.
The
Commissioner has indicated
he will work with Senator
Speier next
year in obtaining statutory authority to regulate
underwriting practices. His hopes to
be able to prevent
insurers from using prior claims history in
making underwriting decisions
unless each
prior claim is reviewed
and a determination
is made if it continues
to have a substantial relationship
to a future loss. The
Commissioner essentially
wants insurers to make
underwriting decisions
without the benefit
of data from claim reporting services
such as CLUE and APLUS.
C. Mold
Insurance Coverage Mandate Still Subject of Legislative Interest
Mandating
insurance coverage
for "toxic" mold became
a dormant issue this year,
but could explode
again next year. The trial
lawyer champion on this particular issue,
Senator Deborah
Ortiz, quietly dropped
her mandate
bill, SB 850, after it passed
the Senate
and faced a hostile
hearing in the
Assembly Insurance
Committee.
There
could be several
reasons why the
mold coverage
issue is being
pushed back to next
year.
First, faced with a tightening
homeowners'
insurance market,
the trial lawyers
may have made
the strategic
decision to wait until next
year when the
market is better
before they
start squeezing
again.
Secondly,
insurers successfully
stopped mold mandate
legislation in the
Assembly Insurance
Committee
last year by convincing moderate
Democrats that mold mandate
legislation should only be
considered
after an unbiased,
independent
scientific study was conducted. Insurers even
generously
offered to
fund such a study by the Department
of Health Services. Now that some
of the pressure
is off, insurers have
lost their temporary
streak of generosity,
and the DHS study isn't even
close to getting
funded.
Trial lawyers
will most likely come
back to the Legislature
next year
with a big "I told you so." They
will say that insurers simply used
the promise
of funding an independent
scientific study as a
stalling tactic, and now that two years have
passed with no progress,
the legislature
should jump in and act.
Ironically,
the fact that the
mold issue has gone
dormant while insurers
have gotten a
handle on mold claims may also play into the
trial lawyers' hands next
year.
Trial lawyers will be
able to push a mandate
as a way of narrowly targeting only the
bad actors, and that it will not have widespread
economic repercussions
as insurers so vociferously
argued two years
ago.
Insurers such
as State Farm and Safeco
that were
limiting their business
in California are loosening
the new business
spigots once again. One of the
reasons being
cited for getting
back into the market
is that insurers are
learning how to handle
mold claims and reduce
costs. Similarly, builders
are putting more
effort into designing
and building homes to limit water
intrusion and mold problems. The public
panic also appears to be
easing a bit.
For example,
Erin Brockovich, who campaigned with Insurance
Commissioner John Garamendi
on the mold mandate
issue during the
last election,
just settled
a "toxic" mold case involving her
home for $130,000. For someone
like Brockovich, this is most likely
a "nuisance" value
settlement
and an indication the case
was in trouble had it gone
to trial.
V. MORE OPTIONS FOR SMALL
COMPETITIVE AUTO INSURERS
Legislation
was finally enacted
this year after
two years of bitter
and politically charged debate
that makes it easier
for auto insurers with a relatively
small share of the
California market to grow their
business.
After vetoing
a similar bill last year, the
Governor this year
signed SB 841 (Perata),
which lets drivers
keep their
discount for being previously
insured even
if they change
companies.
Existing law has always allowed a
consumer's persistency,
or loyalty discount, to be transferred
to a new insurer. However,
recent Department
of Insurance regulations
now provide that a persistency
discount can only be provided
to an existing customer.
The
Department's
new regulations
essentially
lock customers into their
current insurer
because
changing companies means
they lose their
persistency
discount. This is an advantage
to the few
companies with a lock on most of the
California market, but a disadvantage
to smaller insurers
that are aggressively
trying to grow their marketshare
by competing on the
basis of service
and price.
Progressive
Democrats opposed
the bill because
they believe
it harms low-income drivers
who were previously
uninsured.
They argue
insurance is a "zero-sum"
game in which any discount given
to one group means
the rates of
other groups must go up, since
insurers will "squeeze
out every
ounce of profit they
can."
Bi-partisan supporters
challenged the
view insurance
is a "zero-sum" game. They argued
it is cheaper
to provide insurance
to customers who continuously maintain their
insurance as opposed
to those who let
coverage lapse
frequently. They also
point out it benefits
the poor by allowing them
to take their
persistency
discounts with them if a competitor
offers a cheaper
product instead of locking them
into the same
insurer.
The
Department of
Insurance and the
Foundation for Taxpayer and Consumer
Rights opposed the
bill, arguing it violates the
provisions of Proposition 103 prohibiting penalties
for lack of prior insurance. The Governor
vetoed a
similar bill last year just before
the election
after it was caught up in the
controversy surrounding his fundraising
practices.
The bill now provides
an exception
for gaps in coverage
not exceeding
90 days and a two-year exception
for military personnel. The
Foundation has filed a lawsuit over
the matter.
VI. HEALTH INSURANCE REGULATION
A. Employers Required to Offer Health Insurance
The
Governor has signed
legislation that will for the
first time require
California employers
to purchase health
insurance for their
employees,
or in the alternative
pay premiums to state
agency that would purchase
insurance on behalf
of uninsured employees. The Legislature
took a decidedly
"in your face" approach to making
law when they
passed this mandate. They
short-circuited the
normal legislative
process of holding substantive
hearings to let
all the interested
parties make
their case,
and then fashioning a bill based
on the testimony. The Legislature
instead formed
a conference
committee near
the end of the
legislative session
that held only two pro forma hearings
before
issuing a pre-determined
report.
The
bill, SB 2 (Burton), has been
dubbed "pay or play." It would require
almost all employers
to either
provide health
insurance coverage
to their employees
and dependents
or pay a fee
to a state insurance
pool.
The
Legislature's
aggressive
approach is based on the
politics surrounding the issue. Labor and consumer
groups are miles
apart from employers
and insurers.
Accordingly, supporters of a health
insurance mandate
concluded holding lengthy
hearings and trying to negotiate
a compromise would be
a waste of time. Instead, their
tactic was to use an overwhelming
Democratic majority in the
Assembly and the
Senate to
squash any dissent and send
the bill to the
Governor.
The bill's supporters
apparently concluded
the once moderate
Governor Davis will tack left
and sign the bill to shore
up his base in the
face of the
October 7 recall
election. The same
tactic worked last year
when the Governor,
facing an unexpectedly
difficult reelection
campaign, signed a $3.5 billion workers'
compensation insurance
benefit increase
bill after three
previous vetoes.
SB 2 will require
employers
with more than 20 or more
employees
to provide coverage
for hospital, surgical, medical care
and prescription drugs to employees
and their dependents
or pay a fee
into the State
Health Purchasing Fund. The Fund
would then pay for coverage
for the uninsured
employees. The bill
would become
operative on
January 1, 2026 for employers
with 200 or more employees,
and January 1, 2026 for employers
with 20-199 employees.
As a concession
to small employers,
those employers
with 20 to 49 employees
would be exempt
from the bill's requirements
unless a 20% tax credit
is enacted to
help pay for the
cost of insurance. This provision, however,
exemplifies
how quickly the bill was thrown together
and the unintended
consequences
that may occur. If a tax credit
is enacted
for employers
with 20-49 employees
to buy health insurance,
those employers
with 19 or fewer
employees
who now pay full freight will argue
they should also receive
the credit.
The
Fund will be administered
by the Managed
Risk Medical Insurance
Board (MRMIB), which currently manages
the Healthy
Families Program which provides
low-cost health insurance
to the children
of the working poor. MRMIB will establish
the fee
to be paid by employers
who do not provide health
insurance coverage. It will also negotiate
with health insurers
and health plans on the
coverage to be
provided, the
cost of coverage,
and the amount of co-payments,
deductibles
and co-insurance. Employers
must pay 80% of any fees. For employees
who make less
than 200% of the federal
poverty level,
their co-pay would be
capped at 5%.
The
Employee Development
Department
(EDD) will collect the
fee in the
same manner
it collects payroll taxes. An employee
will still be covered
under the
program even
if an employer
fails to pay the fee. Employers
who fail to pay the fee
or pay late will be
assessed
double the
amount of the fee.
The
fee is waived
for employers
who provide evidence
to EDD that they have
provided health
insurance coverage
to their employees. Proof of coverage
is acceptable
from health plans and insurers
that meet the
requirements
of existing law, multiple
employer welfare
arrangements
and ERISA plans.
Employers
are prohibited
from designating employees
as independent
contractors to avoid the requirements
of the law.
Employees
eligible for
other federally
subsidized state
programs such as Medi-Cal and Health
Families may continue
to stay in those programs. However,
the State's
"share of cost" would be
funded out of the
employer fee
account.
The
bill also extends
the small group reforms
enacted in
1993 restricting rate
differentials
to mid-size employers
with up to 200 employees. To address
the problem
of adverse selection,
the bill was amended
to apply a +/-15% rate band for employers
with 50-200 employees. Existing law applies
a +/- 10% rate band to employers
with 2-50 employees. Even so,
mid-size employers
with good underwriting experience
may end up paying higher
rates under
the subsidized
rate bands, forcing many out of the
insurance pool by self-insuring. Thus, only employers
with the sickest
employees
would remain in the
insurance pool. Many of these
employers
would stop providing coverage,
and simply pay the MRMIB fee
to cover their
employees. The ensuing
"death spiral" would then
place the
solvency of the
MRMIB pool at risk. Several
health plans had asked
for a +/-20 % rate band.
There
is a huge difference
of opinion as to what the mandate
will cost employers. No costs are
specified in
the bill as the
task of negotiating pool insurance
is left to MRMIB. A study by the
Institute for Labor and Employment
at UC Berkeley
estimates the
cost of each newly
insured employee
at $1,343 annually. The
author of the study estimates
that because
most employers
already provide
health insurance
coverage,
only 2.7% will see
operating costs increase
by 1% or more.
The author also concludes
that only 8% of the state's
workers will become
insured as a result
of the bill.
The
California Chamber of Commerce,
however, has
placed a much higher
cost on the bill. They estimate
the bill will cost employers
$5.7 billion per year,
about the same
amount employers
will save as a result
of this year's workers'
compensation insurance
reforms.
The Chamber
is now making preparations to sponsor a referendum
to stop the bill from going into effect.
B. Health Care Rate Regulation Temporarily Stalled
Senator
Liz Figueroa, a potential
contender for
Lieutenant
Governor in 2004, has been
forced to postpone
consideration of her
Proposition 103-style rate
regulation proposal for health
insurance.
SB 26 requires
the Insurance
Commissioner or the
Director of the
Department of
Managed Care
to regulate health
care premiums,
deductibles
and co-pays. Consumer
advocates would be
allowed to intervene
in the rate hearings
on behalf of the
public, and collect an intervenor
fee for their
trouble.
The Foundation for Consumer
and Taxpayer Rights (once
known as the Proposition 103 Enforcement
Project) and affiliated
with Harvey Rosenfield
is behind the
effort.
SB 26 did
not make the
deadline for
passing out of the Senate
Insurance Committee
this year.
The bill, however,
is eligible
for consideration next
year.
Most employers
and health plans oppose
the bill.
It also helped
that the California Medical
Association was quietly opposed
to the bill.
Learning the
lessons of history, CMA correctly
concluded that if health
plan rates were
regulated, it
would increase
pressure on
its members'
fees, and perhaps
even lead
to regulation of physician fees.
The
Foundation for Taxpayer and Consumer
Rights is now making noise about running an
initiative.
They proudly point to their
success with Proposition 103, and argue
they could do it again with health
insurance rates. It may be
more difficult, however,
to run an initiative proposing health
insurance rate
regulation.
This is not necessarily
a populist issue. Unlike auto
insurance, the
true cost of health
insurance is masked
for most consumers because
it is by and large an employer
provided benefit. In addition, the
Foundation would have to come
up with some serious
money to get
any attention.
Odds are they
will try to move SB 26 next
year in the Legislature. Now that health
insurance is a required
commodity, they may have
better luck
making their case
that the cost should
be regulated.
VII. Trial Lawyers Kill Shake-down Lawsuit Reforms
The
Assembly and Senate
Judiciary Committees,
infamously sympathetic to the
cause of trial lawyers,
have squashed
all efforts to reform
the wildly abused
"unfair competition" lawsuits. The Committee
actions dashed the
hopes and dreams
of large and small businesses
alike that have
been at the
receiving end
of these shakedown
lawsuits. After
a decade of reform
efforts, this seemed
the year some
reform might get
out of the Legislature's
two Judiciary Committees.
Business
& Professions Code
§17200, the "Unfair Competition
Act, allows trial lawyers to file
lawsuits for anything they deem
"unfair," even
if they don't have
a client and are
instead representing
the "public interest." Large businesses
have been
complaining for years the
law acts as a tax on the economic
system without providing any consumer
benefit. They argue
trial lawyers file
a single lawsuit naming thousands of businesses,
hoping to extort a "nuisance
value" settlement. Previous efforts
at reform have
fallen on deaf
ears in a democratically
controlled legislature
fiercely protective
of trial lawyers.
This year,
however, even
the trial lawyers'
lobbyists had to blush. The
abuses have become
so widespread
and blatant they garnered
the attention
of the media. In some
highly publicized cases,
thousands of nail salons and small restaurants
have been
sued for minor infractions. The lawyers
in the cases
have offered
to settle
with each defendant
for $1,000. Controversy
has erupted
over the
lawsuits, with legislators of both parties
and the media
charging the lawsuits unfairly target
unsophisticated small businesses
operated by
immigrants.
Tort reform,
which is typically a Republican issue,
suddenly garnered
bi-partisan support. Republicans
and moderate
Democrats introduced
several bills
on the issue. However,
the trial lawyers
and their protectors
mounted a vigorous defense. They have
resisted calls
for wholesale
reform of the
system, arguing the
abuses of §17200 are
not widespread,
and are limited
to a few bad actors.
To lend
further credence
to the argument
wholesale reform
is not necessary,
the Attorney
General and
the State Bar
have sought to deflect
attention to one
of the allegedly
more egregious
law firms, the Trevor
Law Group based in Beverly
Hills. The
Attorney General
is suing the Law Group, and the
State Bar has disbarred
the lawyers. The firm is
reported to
have filed
more than 3,000 frivolous lawsuits based
on §17200 last year.
Faced
with all the bad press,
and real reform
measures
authored by a group of bi-partisan legislators,
the trial lawyers
sponsored some
weak reform
bills to provide additional cover. The bills,
AB 95 (Corbett) and SB 122 (Escutia), are
authored by the
Chairs of the Assembly
and Senate
Judiciary Committees. The trial
lawyers, however,
had the shameless
audacity to include in the
"reform" bills language
that would actually increase
the amount of damages
they can collect
in a §17200 lawsuit. The
bills allow "disgorgement"
of profits from a company regardless
of whether a
consumer or other
business is harmed
by an alleged
unfair business practice
This provision was inserted
to overturn a limitation placed
on the trial lawyers
by the California Supreme
Court in Kraus v. Trinity Management Services. The
Court concluded disgorgement
should only be permitted
in class-action lawsuits. The
net effect
of the new
disgorgement
remedy in
§17200 lawsuits is to increase
the settlement
value of the
lawsuits
The
Assembly and Senate
Judiciary Committees
killed all the
Republican authored
reform bills.
In addition, the Assembly
Judiciary Committee
killed AB 69 (Correa),
authored by a moderate
Democrat whose
immigrant constituents have
been
particularly hard hit by the abuse
of §17200. The
trial lawyer sponsored
legislation, naturally, passed
out of committee. However,
the bills failed
on the floor in the
Assembly when
moderate Democrats
joined with Republicans
in calling for substantive tort reform. Having failed
yet again to obtain relief
from the Legislature,
a group of businesses
is moving forward with an initiative to reign
in the abuse.
The
trial lawyers also made
a last minute attempt
to change the
law regarding health
provider liens. SB 494 (Escutia) was amended
a few days before
the end of session
to circumvent attempts
to control medical costs, thus inflating costs
for workers' compensation
insurance and auto insurance. The bill
failed in the
Assembly Health
Insurance Committee
in part because
of increasing criticism of the
"gut and amend" process
which some view
as a short-circuit to the normal legislative
process.
VIII. REGULATING SENIOR LIFE INSURANCE AND
ANNUITIES SALES
Early this year,
the Senate
Insurance Committee
held a hearing
entitled
"Financial Planning or Fleecing
of Seniors?: Insurance
Products and Investments." The
inflammatory title of the
hearing was seemingly
validated by a long list of witnesses
who provided a litany of examples
of insurers and agents
taking advantage of senior
citizens through coercive
and fraudulent sales
tactics.
Shortly after
the hearing,
Senator Jack Scott, a member
of the Senate
Insurance Committee
and advocate for seniors,
introduced legislation
sponsored by a coalition of consumer
groups to "reform" the
law regarding the
sale of insurance
and annuities to senior
citizens.
The bill, SB 620, did not deal
with simply one topic. Instead, it
was a lengthy and comprehensive
piece of legislation
that dealt with virtually every
anecdotal abuse
that had been
presented
in the "Fleecing
Seniors" hearing.
SB 620 took
a sweeping
approach to "reform." Instead of
targeting criminal or fraudulent
conduct, it essentially
banned the
sale of annuities
and imposed unrealistic
restrictions on the
sale of life
settlements
and other insurance
products. The
bill established
suitability standards that would create
an entirely new
duty for insurers - the
"special duty of suitability."
In addition
to banning annuities, the
bill mounted several
attacks on agents. It set
up a new regulatory
system for holding investment
and insurance meetings,
seminars and sales
presentations. It also set
up a regulatory structure
for obtaining and using titles and designations
issued by professional
groups. Agents
would also have been
required to
disclose their
commission when selling
annuities.
The
bill passed out of the
Senate in its
most offensive
form and virtually untouched. However,
insurers, agents
and the sponsors began
serious negotiations
searching for a compromise
once the bill
reached the
Assembly.
After numerous
negotiating sessions
and technical re-writes,
a compromise was achieved.
All the
anti-agent provisions were
deleted. However,
agents are required
to provide a 24 hours written
notice before
visiting a senior for the
first time in their
homes.
Meetings
in an office or other
location, and subsequent
meetings, are
not subject
to the restrictions. In addition, annuities
and the sale
of insurance products to seniors
will be one
of the topics to be
included within existing
training requirements
for agents.
The
compromise bill deleted
Sections 2 and 3 of the
bill imposing suitability standards, the de
facto ban on the sale
of annuities and new
legal standards. Instead, the
author and sponsor agreed
to wait for recommendations
from the National Association of Insurance
Commissioners before
reintroducing these
provisions in another bill next
year. The
bill also provides some
new disclosures
and improvements
to the existing
"free look"
provisions regarding sales
of insurance products to seniors.
The
compromise also removed
the regulation
of insurance settlements
from the bill.
Instead, the
author and sponsors agreed
to work with the Department
of Insurance and interested
parties in negotiating
a comprehensive
scheme to regulate
insurance settlements
next year. The vehicle
for this new effort
will be AB 1103 (Laird).
SB 620, as enacted, ensures fair, honest conduct
when selling
annuities to seniors
without burdening the
vast majority of legitimate
transactions and preserving
choice for seniors
in making important financial decisions. We expect,
however, that
many of the offensive
provisions that were
stricken this year
will surface again next
year. We
are certain legislation
will be introduced
imposing new suitability standards. If the NAIC
does not issue
a draft soon, consumer
groups are likely
to fill the void with anti-industry standards
that will be difficult to push back without an
early and vigorous lobbying effort.
In related
matters, insurers
and agents and brokers
supported companion legislation,
SB 618 (Scott), which increased
penalties for
insurance fraud and misrepresentation. The insurance
industry was also able to stop hostile
legislation regarding
life settlements,
AB 1103 (Laird), and instead obtained
agreement
from the author and the
Department of
Insurance to work in a collaborative
manner next year
on a constructive reform
effort.
AB 412 (Chan), an effort to require
prior approval for life insurance
and annuity advertising was also killed. Finally, an effort
to broadly prohibit the issuance
of corporate-owned
life insurance
policies was blunted. AB 226 (Vargas) was narrowed
to only prohibit COLI policies on non-exempt
employees. In addition, it is likely
the employers
who want to continue to insure
non-exempt employees
can use a trust mechanism
to avoid the direct
prohibition.
IX. AGENT DISCIPLINARY RECORD BILL SIGNED
AB 794 (Frommer),
which would establish guidelines
for how long information regarding minor
infractions against insurance agents
and brokers remains
posted on the
Department of
Insurance website,
has been signed
by the Govenor. The Department
routinely posts enforcement
actions on its website. However,
there is no
statute or regulation
governing this practice. As a result,
the Department's
practice has been
to permanently
post even the
most minor infractions.
For example,
an insurance agent
paid a $250 fine in 1977, and that information
continues to be
posted on the
Department's
website 26 years
later.
The fine
notation is displayed whenever
a customer does
an address search
for the agent. As a result,
this minor violation tarnishes the
agent's reputation
even though
26 years have
gone by without any further
regulatory or enforcement
action.
The
bill provides that minor violations will remain
posted for ten
years.
However,
the violations will only "age-off"
if the agent
maintains a clean record
during that 10-year period. Any enforcement
action relating to a suspended
or revoked
license
continues to be
permanently
posted on the
website.
The
Department of
Insurance supports the
bill because
it continues to provide
consumers with easy
access to information about insurance
agents and brokers
while at the
same time cleaning
the website
of minor items long after
they have become
irrelevant. The bill
also mirrors policies established
by other agencies
in managing postings regarding their
licensees.
X.
BILL
SUMMARY
Following is a compilation of some
of the significant insurance
and financial services
related bills
signed by the
Governor this year. Most of these
bills will become
effective
January 1, 2004. This year
the Legislature
sent Governor
Davis 967 bills. He
signed 909 of those
bills and vetoed
58.
Auto Insurance Bills
·
AB 1181
(Ridley-Thomas): Requires
that a policy of automobile insurance
contain, at policy issuance and in each
renewal notice
sent prior to the
renewal of the
policy, a rating information disclosure regarding
the information that was applied
in determining
the premium
that was charged for the
policy. Chapter 360.
·
AB 1274
(Chavez): This bill clarifies
current law to distinguish between
risk-based motor clubs, such as the
American Automobile
Association and non-risk-based motor clubs
that provide only maps and discount coupons.
This bill specifies
that the latter
category of motor clubs is not
subject to regulation
by the Insurance
Commissioner.
Chapter 88.
·
SB 60 (Cedillo): This bill makes changes
regarding the
eligibility requirements
for an original driver's license
or ID card. It (1) allows persons
who do not have legal
presence
in the United
States to be eligible
to apply for a driver's license
or ID card, (2) permits license
applicants to submit a federal
taxpayer ID number
or other identifier
number deemed
appropriate by DMV, rather
than a social security number,
(3) provides for a signed
affidavit procedure
if the applicant does
not have a social security
account, and (4) increases
fees for specified
driver's licenses
and deletes
fees of senior
ID cards. Chapter 326.
·
SB 333
(Escutia): Increases
from one year
to two years the
permitted time
for an insured with uninsured
motorist coverage
to file a cause
of action against an uninsured motorist or to
commence
arbitration proceedings
under his or her
uninsured motorist policy. Chapter 56.
·
SB 551
(Speier): Codifies
existing regulatory
law and prohibits an insurer from requiring
that an automobile be
repaired at a
specific automotive
repair dealer.
Also prohibits an insurer from suggesting
or recommending
that an automobile be
repaired at a
specific automotive
repair dealer
unless the
claimant requested
the referral
or the claimant is informed,
in writing, of his or her rights. Chapter 791.
·
SB 841 (Perata): Allows insurers
to offer a persistency
discount to existing as well
as new auto insurance
policyholders.
Chapter 169. Consumer groups filed a lawsuit in Los Angeles Superior Court challenging the validity of the law.
The first hearing is scheduled for November 25, 2003.
Homeowners' Insurance
·
AB 996
(Wiggins): Extends to reproductive
health services
facilities the
prohibition on insurers from canceling
or refusing to renew
a property insurance
policy because
the facility has been
the victim of a hate
crime. Expands this existing
prohibition to also include anti-reproductive-rights
crimes committed
against reproductive
health services
facilities.
Chapter 647.
·
AB 1049
(Calderon & Wyland): Prohibits insurers
or agents from basing an adverse
underwriting decisions
on the fact that an individual has previously
inquired about the
scope of homeowners
insurance coverage
and the inquiry was logged
in an insurer database,
and no claim was ultimately filed. Chapter 442.
·
AB 1191
(Wiggins): Requires
insurers to provide
policyholders with the
reasons for the
nonrenewal of
their homeowner's
insurance policies
and requires
insurers to provide
policyholders, upon request,
with the reasons
for the change
in their annual premium. Chapter 571.
·
AB 1727
(Assembly Insurance Committee): This bill requires
homeowners
and residential
property or liability insurers
to give a 20-day written
advance notice
of cancellation, except
in the case
of non-payment of premiums,
or for fraud, for which a 10-day advance written
notice of cancellation
is required. Chapter 148.
Earthquake
Insurance
·
AB 1048
(Calderon): This bill changes
the California Earthquake
Authority (CEA) statute by revising
the definition
of available capital. Excludes
unearned premiums
and the proceeds
of bonds issued by or in the
name of the
CEA from the definition
of available capital. Creates
a definition of "unearned
premium reserve"
and requires
assets equal
to the unearned
premium reserve
to be retained
until the policyholder
claims and liabilities have
been
paid. Chapter 144.
·
AB 1598
(Corbett): This bill extends
the sunset
date for the
Earthquake Grant and Loan Program operated
by the Department
of Insurance to July 1, 2007. The bill
also appropriates an additional $2.9 million
to the Program from the
now defunct California Residential
Earthquake Recovery. Chapter 448.
Business of Insurance
·
AB 378
(Steinberg): Incorporates
unclaimed demutualization
insurance proceeds
into the Unclaimed
Property Law.
Unclaimed distributions from the
demutualization of an insurance
corporation are presumed
abandoned after
three years. The proceeds
are then reported
to the State
Controller.
Chapter 304.
·
AB 794
(Frommer): Requires
that records regarding
minor disciplinary actions against agents and
broker posted
on the Department
of Insurance's website
"age-off" after
10 years.
Chapter 310.
·
AB 984
(Vargas): This bill defines
a vehicle service
contract and provides that contracts meeting
the definition
do not qualify as automobile insurance.
This bill also adds various regulatory
provisions relating to the
service
contracts. Chapter 439.
Workers' Compensation Insurance
·
AB 149
(Cohn): Extends the
statute of limitations for claims for workers'
compensation death
benefits in
the case of
firefighters
whose death results
from asbestosis. Chapter 831.
·
AB 227
(Vargas): Part of the workers'
compensation insurance
reform conference
committee report. Chapter 328.
·
SB 176
(Johnson): Requires
the WCIRB to provide
written notification to policyholders
when it imposes
a change in the
policyholder's classification assignment. Chapter 121.
·
SB 228 (Alarcon):
Part of the workers'
compensation insurance
reform conference
committee report. Chapter 639.
·
SB 359
(Figueroa): The
bill makes health
care professionals
subject to license
suspension or revocation
for committing worker's compensation
insurance fraud. Chapter 595.
·
SB 1007
(Speier): Expands
the definition
of "common trade or business"
for the purposes
of association or trade group workers'
compensation insurance
policies to include
manufacturing facilities as identified
in the North American
Industry Classification System. Chapter 641.
Health, Life & Disability Insurance
·
AB 226
(Vargas): Prohibits the issuance
of corporate-owned
life insurance
policies on non-exempt
employees. Chapter 328.
·
AB 284
(Chavez): This bill requires
annuity contracts (1) provide for paid-up
annuity benefits
upon written request
of the contract owner,
(2) eliminates
the requirement
that a company reserve
the right to defer
cash surrender
benefit for
six months, but allows the company to reserve
that right after receiving
written approval of the
Insurance Commissioner,
(3) allows payment of the
cash surrender
benefit to be
deferred
for a period not to exceed
six months, (4) provides for a uniform method
of calculating minimum non-forfeiture
amounts under these
contracts, (5) modifies the
interest rate
applicable to accumulations under
these
contracts, the amounts by which the
accumulations may be decreased,
and the minimum amount of consideration
used to determine
the minimum non-forfeiture
amount, (6) allows the Commissioner
to adopt regulations to implement
these
provisions and to adjust the calculation of
minimum non-forfeiture
amounts for certain other
contracts, and (7) specifies
that this bill shall become
operative on
January 1, 2006, but that a company may elect
to apply them any time
between
the bill's effective
date and its operative
date. Sets a
flat annual fee
of $50 for all deferred
annuities in today's low interest
rate environment. Chapter 381.
·
AB 444
(Vargas): This bill authorizes the
Insurance Commissioner
to issue bulletins,
providing for approval on one or more
expedited
bases, of policies,
contracts, or agreements,
guaranteed by
an admitted life
insurer, and filed
with the Department.
Also authorizes expedited
approval of an insurer's policy, contract, or
agreement,
upon certain other
conditions. Chapter 352.
·
AB 1083
(Cogdill): This bill prohibits an insurer
from issuing a policy to an applicant that insures
the life of
the applicant's spouse
unless the
spouse has signed
the policy application or has otherwise
been notified
in advance of the
issuance of the
policy. Applies to life
insurance policies
with face amounts exceeding
$50,000 that are issued
on or after 7/1/04. Chapter 115.
·
AB 1252
(Jackson): This bill makes several
technical changes
to conform state law to the
federal
Gramm-Leach-Bliley
Act. Specifically, this bill (1) renames
various continuing education requirements
for long-term care
insurance agents,
(2) adds "territory of the
United States"
to the list of non-resident
jurisdictions, and (3) repeals
a provision of current law regarding
reinsurance
intermediaries
not allowed under
federal
law. Chapter 217.
·
AB 1600
(Nakano): This bill extends
the period of
time that life
and disability insurers must maintain records
from two to five years
and authorizes the
Insurance Commissioner
to collect and report
data relating to life
and disability insurance. Chapter 166.
·
SB 2
(Burton): This bill requires
employers to
provide health
insurance coverage
for employees,
or pay a fee
into a state fund to pay for coverage. The bill is
phased in over
several years
depending on employer
size and exempts
employers
with 50 or fewer
employees. Chapter 673.
·
SB 200
(Murray): This bill prohibits, until 1/1/08, long-term
care insurers
from using genetic
testing to determine
insurability or for underwriting purposes. Chapter 408.
·
SB 212
(Machado): Updates investment
rules for Multiple
Employer Welfare
Arrangements. Chapter 320.
·
SB 618
(Scott): Increases
fines and penalties
for insurers and agent
and brokers that violate
the Insurance
Code. Chapter 546.
·
SB 620
(Scott): This bill increases
the restrictions
on the marketing
of life insurance
and annuities to senior
citizens. Specifically,
this bill (1) creates
new training requirements
for insurance agents
and brokers, (2) requires
additional disclosures for life
insurance and annuity products, and (3) imposes
restrictions on the
sale of life
insurance and annuities
in the home
of a senior.
Chapter 547.
·
SB 686
(Ortiz): This bill requires
an insurer issuing liability policies
to long-term health
care facilities,
residential
care facilities
for the elderly,
or physicians who provide services
to residents
in those facilities
to notify the Department
of Insurance at least
90 days canceling those
policies.
Allows the Department
to collect data regarding
those policies
and authorizes the
formation of a market assistance
program to assist in securing liability
insurance and to order
the creation
of a joint underwriting association. Chapter 899.
Tort Reform & Litigation
·
AB 634
(Steinberg): Creates
a statewide
policy against confidential settlement
agreements
and disclosure of information obtained
during discovery proceedings
in cases brought under
the Elder
Abuse and Dependent
Adult Civil Protection Act. This is the
camel's nose
under the tent. Trial lawyers
have been
trying to apply this standard to all litigation for several
years. Chapter 242.
·
AB 903
(Steinberg): This
bill corrects various technical
errors and issues
in the construction defect
law, SB 800 (Burton), enacted
last year.
Chapter 762.
·
SB 434
(Escutia): This bill provides the
Attorney General
with the duplicative
authority to enforce
the corporate
securities
and commodities laws. It also creates
a new misdemeanor
for knowingly and willfully making false statements
in connection with an investigation
into corporate misconduct. Chapter 876.
·
SB 515
(Kuehl): The
purposes of this bill are
to: (1) provide the
Attorney General
with the authority to enforce
the states
corporate securities
and commodities laws to be
accomplished on existing
financial resources,
(2) make various clarifications to the
laws regarding a department
head's ability to share
and seek
information, and (3) create
a new misdemeanor
for knowingly and willfully making false statements
in connection with an investigating
into corporate misconduct. Chapter 338.
Title Insurance & Real Estate Services
·
AB 479
(Maldanado): This bill revises
licensing, penalty
and surety fund requirements
for escrow companies. Chapter 382.
·
AB 943
(Chavez): This bill makes
technical changes
to conform statutory mortgage insurance
company accounting practices to other
states.
Chapter 392.
·
AB 1005
(Dutra): This bill allows title insurers
to lower prices
for title insurance
within a given county immediately
after filing the
rates with the
Department of
Insurance.
Chapter 440.
·
AB 1553
(Wesson): Expands the
scope of what a consumer
goods "service
contract" may cover, and gives
service
contract sellers
a new means
to fulfill existing financial reserve
requirements. Chapter 775.
Privacy & Identity
Theft
·
AB 68
(Simitian): Enacts the Online
Privacy Protection Act of 2003, requiring
disclosure of online
privacy policies. Chapter 829.
·
AB 763
(Liu): Provides that a social security
number that is allowed
to be mailed
to an individual under existing
law, may not be printed,
in whole or in part, on a postcard or other
mailer not requiring
an envelope,
or visible on the
envelope
or without the envelope
having been
opened. Chapter 532.
·
AB 1105
(Jackson): Adds the crimes
of identity theft
and filing false documents
to the list of offenses
for which the statute
of limitations does not begin
to run until discovery of the
offense. Chapter 73.
·
AB 1294
(Wiggins): Requires
debt collectors
to cease collection
efforts until they
review and
make a determination
of the validity of specified
information indicating that the debts
they are
trying to collect are
the result of
identity theft. Chapter 287.
·
AB 1610
(Pavley): This bill requires
the user of a
consumer credit
report to take
reasonable steps
to verify the
accuracy of a name or social security
number supplied
in a credit application if that name
or social security number
does not match the
information contained in the
credit report. Chapter 41.
·
SB 1 (Speier): This bill requires
a financial institution to obtain the consent
of a consumer before
it may share personal
information with any nonaffiliated third party (opt-in). While
consent is not required
to share information with an affiliate or joint marketing partners, the
consumer must be
provided with the
opportunity to direct that personal
information not be disclosed
(opt-out). The
bill provides for unrestricted
sharing of information between
a financial institution and its wholly owned
financial subsidiaries in the same line of business defined
as one of the
following: insurance, banking or securities.
(no-opt). Chapter 241.
·
SB 25
(Bowen): This bill would require
any person who uses
a credit report
to extend credit
to take reasonable
steps to verify
the consumer's
identity if the
credit report
contains a security alert.
This bill would also prohibit entities
from making public an individual's social security
number or using social security
numbers as passwords or on an identification
card. Chapter 907.
·
SB 27
(Figueroa): This bill would require
businesses to
either: 1)
disclose to customers,
upon request,
what categories
of personal information the
business shares
with third parties for marketing
purposes, or 2) provide
customers with the
ability to opt-out of having their information
shared for marketing
purposes.
Chapter 505.
·
SB 33
(Figueroa): Revises
California's "Do Not Call" telemarketing
restriction law to coordinate
with the recently
adopted federal
law on the same
issue.
Allows the federal
list to become
the "master
list" and spares California the
cost of managing its own separate
list. Chapter 779.
·
SB 186
(Murray): This bill would allow consumers,
the Attorney
General and
internet
service
providers to sue
businesses
that send
"spam," or unsolicited email. Penalties
could go as high as $1 million per incident. The bill
contains an existing business
relationship exemption. Chapter 487.
·
SB 602
(Figueroa): Establishes
the Identity
Theft Prevention
and Assistance Act that provides
various protections and support for victims of
identity theft. The bill
also increases
law enforcement
tools and caps the fee
for a consumer to freeze
his or her credit
filed at $10.
Businesses
would also be prohibited
from collecting information for marketing
purposes by swiping a driver's
license. Chapter 533.
·
SB 684
(Alpert): This bill would help
identity theft
victims get the
documents they
need to clear
their name
from the companies
that opened new
accounts or extended
credit to a thief. Chapter 534.
·
SB 752
(Alpert): Assists victims of "criminal
identity theft"
clear their
names through the
comparison of the thumbprints of the
thief and victim. Chapter 467.
* * *
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