BILL ANALYSIS                                                                                                                                                                                                    






                        SENATE COMMITTEE ON BANKING, FINANCE,
                                    AND INSURANCE
                           Senator Ronald Calderon, Chair


          AB 2778 (Committee on Insurance)   Hearing Date:  June 30, 2010   


          As Amended:              May 11, 2010   
          Fiscal:             Yes
          Urgency:       No

          VOTES:              Asm. Floor(05/28/10)63-0/Pass
                         Asm. Appr.                          
                    (05/19/10)16-0/Pass
                         Asm. Ins.                (05/05/10)12-0/Pass


           SUMMARY    Would authorize the Director of the Employment  
          Development Department (EDD) to approve a single voluntary plan  
          of disability insurance for multiple small employers.
          
           
          DIGEST
            
          Existing law
            
          1.Allows an employer, and a majority of the employees of an  
            employer, to apply to the Director of the Employment  
            Development Department (EDD) for approval of a voluntary plan  
            for the payment of disability insurance (DI) benefits to the  
            employees.;

          2.Requires the Director of EDD to approve a voluntary plan when  
            he or she finds, among other things, that the following  
            conditions exist:

               a.     The rights afforded to the covered employees are  
                 greater than those provided for employees covered by  
                 State Disability Insurance (SDI) benefits and Paid Family  
                 leave;

               b.     The plan has been made available to all of the  
                 employees of the employer in this state or the employees  
                 of a separate establishment maintained by the employer;





                                                                      AB  
          2778 (Committee on Insurance), Page 2



               c.     A majority of the employees and the employer have  
                 consented to the plan;

               d.     The plan will be in effect for at least one year;

               e.     The plan will not result in a substantial selection  
                 of risks adverse to the state Disability Fund;

          3.Provides that disability benefits payable to employees are the  
            liability of an approved voluntary plan;

          4.Provides that an employee covered by an approved voluntary  
            plan is not entitled to SDI benefits. 
           

          This bill

           1.Would state findings and declarations as follows:

               a.     Small businesses have not had the same access to the  
                 benefits of voluntary plan disability insurance (VPDI) as  
                 employees of larger employers;

               b.     This lack of access is due, in part, to the  
                 administrative difficulty and expense associated with the  
                 application and ongoing operating compliance with current  
                 law and Employment Development Department procedures;

          2.Would authorize the EDD Director to approve a single voluntary  
            plan for all of the clients of a "small-business-third-party  
            administrator" (hereafter SBTPA), and the clients' employees,   
            when all of the following criteria are met:

               a.     The plan is administered by the SBTPA;

               b.     The plan establishes a master trust account, to be  
                 held in a federally insured national bank, that is  
                 administered by the SBTPA, but requires each individual  
                 employer that is a client of the SBTPA to have a subtrust  
                 account that reflects that client's employees' specific  
                 plan contributions and is not commingled with any other  
                 funds;

               c.     If a plan does not provide for the assumption by an  
                 admitted disability insurer of the liability of the  
                 employer to pay the disability benefits, the EDD Director  




                                                                      AB  
          2778 (Committee on Insurance), Page 3



                 shall not approve it unless the employer files with the  
                 Director the bond of an admitted surety insurer, deposit  
                 of securities approved by the Director, or deposit of an  
                 irrevocable letter of credit in an acceptable amount and  
                 in compliance with specified law.  The Director may  
                 require additional security from the SBTPA; 

               d.     The single voluntary plan will be in effect for a  
                 period of not less than one year and, thereafter,  
                 continuously, unless the Director of EDD finds the SBTPA  
                 has given notice of withdrawal of the plan. Such notice  
                 shall be filed in writing with the Director and effective  
                 on the next anniversary of the plan effective date, that  
                 is not less than 30 days from the date of the filing of  
                 the notice; the plan may be withdrawn on the operative  
                 date of any law increasing the benefit amounts provided  
                 by Sections 2563 and 2655 or the operative date of any  
                 change in the rate of worker contributions as determined  
                 by Section 984, if notice of the withdrawal from the plan  
                 is transmitted to the Director of Employment Development  
                 not less than 30 days prior to the operative date of that  
                 law or change. If the plan is not withdrawn on the 30  
                 days' notice because of the enactment of a law increasing  
                 benefits or because of a change in the rate of worker  
                 contributions as determined by Section 984, the plan  
                 shall be amended to conform to that increase or change on  
                 the operative date of the increase or change.

               e.     Any individual employer who is a client of the  
                 SBTPA, or a majority of that client's employees employed  
                 in this state covered by the plan, may also terminate  
                 their participation in the plan by giving written notice  
                 of withdrawal from the plan to the SBTPA and to the  
                 Director not less than 30 days prior to the date of  
                 withdrawal. 

               f.     The rights afforded to the covered employees are  
                 greater than those provided for employees covered by SDI  
                 benefits and Paid Family Leave;

               g.     The plan has been available to all of the employees  
                 of the employer in this state, and a majority of the  
                 employees have consented to the plan; 

               h.     If the plan provides for insurance, the form of the  
                 insurance policies to be issued has been approved by the  




                                                                      AB  
          2778 (Committee on Insurance), Page 4



                 Insurance Commissioner and is to be issued by an admitted  
                 disability insurer;

               i.     The approval of the plan will not result in a  
                 substantial selection of risks adverse to the Disability  
                 Fund.  SDI benefits are paid from the Disability Fund;

          3.Would define "small-business-third-party administrator," or  
            SBTPA, as an applicant that the EDD Director finds meets all  
            of the following criteria:

               a.     The SBTPA administers voluntary disability plans on  
                 behalf of its clients pursuant to a written agreement in  
                 a form and manner approved by the EDD Director;

               b.     The SBTPA has at least 1,000 California domiciled  
                 clients, 80 percent of whom have fewer than 20 employees;

               c.     The SBTPA processes payroll for its California  
                 domiciled clients;

               d.     The SBTPA offers workers' compensation insurance to  
                 its California domiciled clients through an affiliated  
                 California domiciled insurance company;

          4.Would require EDD to adopt any application forms and  
            procedures within 60 days of the enactment of this bill;

          5.Would declare the intent of the Legislature in enacting the  
            financial security requirements that in the event of the  
            insolvency of an employer-client of the SBTPA, or of the  
            SBTPA, the disability claims against the subaccount of any  
            employer-client arising prior to the date of the insolvency  
            shall be satisfied by first accessing the security of the  
            SBTPA, which may include additional financial security  
            required by the EDD Director, rather than satisfying the  
            claims from the state Disability Fund;

          6.Would sunset on December 31, 2014.



           COMMENTS

          1.Purpose of the bill   To authorize the Director of the  
            Employment Development Department (EDD) to approve a single  




                                                                      AB  
          2778 (Committee on Insurance), Page 5



            voluntary plan of disability insurance for multiple small  
            employers.

          2.Background State Disability Insurance (SDI) is a California  
            insurance program run by the Employment Development  
            Department.  There are three different SDI plans:

               a.     Most California employees are covered by the State  
                 plan;

               b.     Some employers offer Voluntary Disability Plans  
                 (VDP) which is the type of plan which AB 2778 addresses.  
                 A VDP is a private disability insurance plans that has  
                 been approved by the Director of EDD.  VDP's are required  
                 by law to offer coverage that's at least as good as the  
                 State plan and have at least one feature that the State  
                 plan doesn't have. It cannot be more expensive than the  
                 state plan, and it has to be approved by a majority of  
                 employees; 

               c.     Additionally, persons who are self-employed or a  
                 business owner can get Elective Coverage through SDI,  
                 subject to different rules.

            AB 2778 has been introduced to provide a means for a specially  
            qualified business to become an approved third party  
            administrator for VDP plans so that their efficiencies and  
            superior benefits can be made available to those businesses  
            which want them without the existing bottleneck of the  
            approval process. 
           
          3.Support  .  Applied Underwriters (AU), a Berkshire Hathaway  
            Company which is this bill's sponsor, provides payroll  
            services, broadly-defined, to small businesses.  Typically, AU  
            advises the committee it provides payroll services, workers'  
            compensation insurance and a voluntary disability plan (VDP)  
            to firms.

          4.Currently, AU has approximately 1,500 - 1,700 small business  
            clients.  The average number of employees is approximately 20.  
             It finds that this is a growing m,arket segment, which  
            indicates there is a demand for the specialized services it is  
            able to provide to its clients. 

          5.AU reports that at this time, it has more than 1,000 Voluntary  
            Disability Plan applications awaiting approval at EDD.  AU  




                                                                      AB  
          2778 (Committee on Insurance), Page 6



            reports the backlog is such that some of the applications have  
            been pending for over a year.  AB 2778 proposes to provide a  
            means for AU,  and similarly situated entities) to qualify as  
            VDP third-party administrators for small businesses.  AB 2778  
            retains all substantive provision of VDP law, including the  
            election requirement, better benefits for no additional cost,  
            and the right of any employee to join SDI at anytime.  Each  
            employer will have a sub-account in AU's master account.  Each  
            sub-account will be bonded, as required by law.  Additionally,  
            AU (and other 3rd party administrators) will be required to  
            obtain an additional layer of Financial Assurance.  Comingling  
            of accounts, receipts, premiums, etc. is prohibited.

          6.AU reports , and the committee has received, no opposition.  
            According to AU, the EDD is not in support and the proponents  
            have no idea how EDD intends to process the backlog of pending  
            applications or new applications. This 

           1.  Opposition    None
           
          2.  Questions   None

           3.  Suggested Amendments  None

           4.  Prior and Related Legislation   None 

           
          POSITIONS
          
          Support

           Applied Underwriters (AU), a Berkshire Hathaway Company,  
          (Sponsor) 
           
          Oppose
               
          None

          Consultant:   Kenneth Cooley (916) 651-4102