BILL ANALYSIS SENATE COMMITTEE ON BANKING, FINANCE, AND INSURANCE Senator Jackie Speier, Chair AB 778 Mullin Hearing Date: June 15, 2005 As amended: June 6, 2005 Fiscal: No Urgency: No Vote: 2/3 (Proposition 103 amendment) VOTES:Asm. Ins. (4/27/05): 7-0/ Pass Asm. Floor (5/16/05): 47-30/ Pass SUMMARY Would prohibit an insurer from refusing to offer insurance to an applicant who is an in-home supportive services (IHSS) worker, would further ban rating based upon the worker being an IHSS worker, and would prohibit insurers from excluding coverage for the operation of a motor vehicle incident to IHSS DIGEST Existing law 1. Generally requires, pursuant to Proposition 103, that private passenger auto insurance be rated according to the insured's driving record, the number of miles he or she drives annually, and the insured's number of years of driving experience; 2. Permits other factors to be used to rate private passenger auto insurance, with the approval of the Insurance Commissioner (IC), and establishes, through regulations, these other factors: i. Type of vehicle; ii.Vehicle performance capabilities; iii.Type of use of vehicle (pleasure only, commute, business, farm, etc.); iv.Percentage use of vehicle by the rated driver; v. Multi-vehicle households; vi.Academic standing of the rated driver; vii.Completion of driver training or defensive driving courses by the rated driver; viii.Vehicle characteristics, including engine AB 778 (Mullin), Page 2 size, safety and protective devices, damageability, repairability, and theft deterrent devices; ix.Gender of the rated driver; x. Marital status of the rated driver; xi.Persistency; 1. Requires the offer of a "Good Driver Discount" private passenger auto policy to those who meet the statutory definition of a good driver: i. He or she has been licensed to drive for three years; ii. During the previous three years, the person has not had more than one moving violation point, as specified; iii. During the previous three years, the person hasn't had more than one point dismissed through a traffic safety school; iv. During the previous three years, the person hasn't been involved in an accident that involved bodily injury or death and was principally at fault; v. During the previous seven years, the person hasn't been convicted of drunk driving, reckless driving, vehicular manslaughter, and other related offenses. 2. Requires all auto insurance policies to cover liability when performing volunteer services for a nonprofit or government organization when providing "social service transportation," defined, generally speaking, as transporting seniors or those with special needs; 3. Specifies that the policy will not cover those who receive remuneration for transportation in excess of mileage reimbursement; 4. Defines in-home supportive services to include, generally speaking and among other services, the provision of travel to health-related appointments (see "Opposition," below, for fuller explanation). This bill AB 778 (Mullin), Page 3 1 Would require all auto liability policies to include the operation of a motor vehicle for IHSS purposes; 2. Would ban rating, canceling, or refusing to issue a policy because the driver is providing IHSS transportation incident to IHSS. COMMENTS 1. Purpose of the bill . To ensure that IHSS personnel are able to obtain insurance coverage at the rates otherwise available to the general public, and to prevent higher rates from being charged to these workers. 2. Support . According to the author, more than one in five U.S. households is involved in helping care for a person older than age 18. 62% of care givers are married and 2/3 are women. The typical care giver is a 46 year old woman with at least some college experience who provides more than 20 hours of care each week to her mother. As the insurance code now reads, if that person would take their loved one to the doctor or to another necessary appointment, it would be considered using their vehicle "in the course of employment" because the consumer is considered the "employer" for IHSS purposes. Insurance companies are basing their "course of employment" requirements on how many days a week the IHSS provider is using the vehicle for these purposes and also how many stops are made. SEIU, the sponsor, states that an insurer increased the rate of an IHSS worker beyond the financial means of the worker, and also classified the worker as a commercial driver similar to the risk of a pizza delivery driver. The rates for commercial or artisan purposes are "outrageous." IHSS consumers cannot receive more than 283 hours of care per month (all types of care-not just driving). A consumer may receive only 2 or 3 hours of care per month from an IHSS worker, for assistance going to and from medical appointments, for example. Over 40 percent of IHSS providers give care to their own disabled or aged family members who are in need of constant care. "The few hours and miles they spend using their automobile to fulfill their duties to their consumer does not justify commercial or artisan rates applied to their personal auto insurance." SEIU also notes that over 340,000 Californians use the IHSS program, funded by federal, state and county governments. AB 778 (Mullin), Page 4 While the other supporters of this bill made points similar to those made above, the Area Agency on Aging Advisor Council, of the Commission on Aging, El Dorado County noted that, "In some situations, the IHSS recipient does not own a car or their car is not in good working order, but has transportation needs. If auto insurance policies exclude the IHSS provider from using their own car, the IHSS provider would need to use the client's car, possibly jeopardizing their own safety." The California Association of Public Authorities for In-Home Supportive Services notes that IHSS workers transport consumers to medical appointments. "However, this is a fairly limited component of the work performed by IHSS workers and should not trigger higher auto insurance rates. AB 778 would remedy this problem by [by allowing] their existing auto insurance coverage [to be used] and would prevent these low-wage workers from bearing unnecessary and expensive business coverage rates. 3 Opposition . The Association of California Insurance Companies (ACIC) opposes the bill. ACIC believes that the categories of in-home supportive services described in the bill is broad (Welfare and Institutions Code Article 7, Section 12300). Reprinted, below, is the language of existing law (bold) that appears, to staff, to be relevant to the intent of the bill: Welfare and Institutions Code Section 12300: (b) Supportive services shall include domestic services and services related to domestic services, heavy cleaning, personal care services, accompaniment by a provider when needed during necessary travel to health-related appointments or to alternative resource sites, yard hazard abatement, protective supervision, teaching and demonstration directed at reducing the need for other supportive services, and paramedical services which make it possible for the recipient to establish and maintain an independent living arrangement. [Staff note: While the remainder of the language describing in-home supportive services relates to other subjects, it would appear from the statute that the risk that is inherent in the job is described by the bold-faced text, above. ACIC AB 778 (Mullin), Page 5 will be present to explain why this (or any other relevant language) is "broad." There may be other statutes that are relevant, and that were the basis of ACIC's concerns.] ACIC states that the bill doesn't permit an insurer to require higher limits for injury to passengers, such as may be needed to fully account for injuries to those who need in-home supportive services. [Staff note: While true, neither does it require an insurer to indemnify beyond the limits of the policy. If the policy limits ultimately prove to be inadequate, the driver of the car will be responsible for the excess of damages over the limits, not the insurer.] ACIC also states, "Personal automobile rate plans do not provide adequate rates for commercial exposures," and notes that personal automobile rates may exclude vehicles that are commercial vehicles. The Pacific Association of Domestic Insurance Companies (PADIC) believes that IHSS companies will, in summary, evade the costs of commercial insurance by "forcing" their employees to begin to do many of the jobs that would otherwise be carried out in a commercial vehicle by company employees covered by commercial rates. These activities may include delivery of personnel and supplies to in-home customers. PADIC would agree to drop its opposition to the bill if it were limited to allowing family members to continue to use their private passenger vehicles for in-home care, and if insurers could still use the mileage rule of Proposition 103. [Staff note: While an earlier version of the bill proposed a mileage rule, the latest version drops this language and thus mileage could, should this bill pass, be used to rate a policy.] 4. Question . a. The bill in its current form amends Proposition 103 and is therefore keyed 2/3. The Legislature may amend Proposition 103 only if it furthers the purpose of the initiative. Proposition 103 contained this statement: "The purpose of this chapter is to protect consumers from arbitrary insurance rates and practices, to encourage a competitive insurance marketplace, to provide for an accountable Insurance Commissioner, and to ensure that insurance is fair, available, AB 778 (Mullin), Page 6 and affordable for all Californians. " Does the bill further the purpose of Proposition 103? AB 778 (Mullin), Page 7 5. Amendment needed . a. Legislative counsel has offered an informal opinion to staff that the bill amends Proposition 103 because on page 7 at line 28, it bans the use of IHSS status to rate a policy. To avoid amending Proposition 103, but to require insurers to adhere to Proposition 103's analysis of this type of risk, counsel has drafted the following language. Counsel has indicated that this amendment would eliminate the 2/3 vote key on this bill because the bill would no longer amend Proposition 103. Staff recommends that the author take the amendment. On page 7, line 28, strike the words "rated or" On page 7, at line 32, after the period, insert: "No policy of insurance issued under this section may be rated by an insurer for the reason that the named insured or applicant is operating or using an insured motor vehicle, owned by a natural person, to provide transportation incident to the provision of in-home supportive services, except to the extent that the insurer used rating factors permissible under Section 1861.02 and the regulations adopted thereto." POSITIONS Support Service Employees International Union (Sponsor) California Senior Legislature United Domestic Workers of America Commission on Aging El Dorado County Triple-A Council of California California Seniors Coalition California Association of Public Authorities for In-Home Supportive Services Area Agency on Aging (Humboldt/Del Norte Counties) Protection and Advocacy Oppose AB 778 (Mullin), Page 8 Association of California Insurance Companies Pacific Association of Domestic Insurance Companies Consultant: Brian Perkins 916-651-4102