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  




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                           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





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             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.




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              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  




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              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,  




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                        and affordable for all Californians. "  Does the  
                        bill further the purpose of Proposition 103?  
















































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            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
               




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          Association of California Insurance Companies
          Pacific Association of Domestic Insurance Companies

          Consultant:   Brian Perkins 916-651-4102