BILL ANALYSIS Senate Appropriations Committee Fiscal Summary Senator Christine Kehoe, Chair 98 (Calderon) Hearing Date: 5/28/2009 Amended: 4/20/2009 Consultant: Katie Johnson Policy Vote: B,F, & I 10-0 _________________________________________________________________ ____ BILL SUMMARY: SB 98 would revise and recast provisions relating to viatical settlements to define those and other specified financial arrangements as life settlements and would provide for the licensure of brokers and providers of and the regulation of such settlements by the California Department of Insurance (CDI). _________________________________________________________________ ____ Fiscal Impact (in thousands) Major Provisions 2009-10 2010-11 2011-12 Fund CDI regulatory costs $262 $105 - $195 $536 - $1,158 Special* CDI enforcement unknown, but likely an amount Special* and fee revenue sufficient to support the costs of providing this licensing category *Insurance Fund _________________________________________________________________ ____ STAFF COMMENTS: SUSPENSE FILE. AS PROPOSED TO BE AMENDED. Existing law establishes when an interest with respect to life and disability insurance is insurable. Existing law defines "viatical settlement" and requires life and disability agents, among others, to file a declaration with the Insurance Commissioner that their agent license is valid in order to engage in the viatical settlements business. Existing law provides that a person who enters into or solicits a viatical settlement without a license is punishable by a misdemeanor and that the commissioner may suspend the agent's ability to transact viatical settlements. This bill would revise and recast provisions relating to viatical settlements to define those and other specified financial arrangements as life settlements and would provide for the licensure of brokers and providers of and the regulation of such settlements by the CDI. This bill would prohibit a person from entering into, brokering, or soliciting life settlements unless that person holds a license issued by the commissioner of the CDI. This bill would specify that the requirements necessary to obtain a license pursuant to these provisions and that a licensee would be required to pay a $177 annual renewal fee. This bill would allow life agents who have been licensed as a viatical settlement broker or provider as of December 31, 2009, to be deemed licensed pursuant to these provisions. Additionally, a life insurance producer who has been licensed as a life agent for at least one year would be permitted to meet the licensing requirements of this bill, provided they notify the commissioner within 10 days of transacting a life settlement. The CDI currently licenses approximately 219,000 life agents. The CDI does not expect a large influx of individuals seeking the new Life Settlement Broker License because life Page 2 SB 98 (Calderon) agents may simply inform the commissioner of their transacting life settlements and be deemed licensed pursuant to this bill. They would pay a one-time fee of $136 to CDI and would not need to pay a renewal fee. So, in FY 2010-11, there could be revenues of $124,000 - $13,700,000 depending on the number of people who pay the initial notification fee licensing fees. Revenues due to licensing fees and renewals in the out-years are unknown and unlikely to be significant. Anyone who has been licensed as a life agent and who would like to transact life settlements, but who has not completed a year as a licensed life agent, would apply for a Life Settlement Broker License. However, by the time of annual renewal of his or her license, the broker would have completed one year as a life agent and would simply notify the CDI that he or she was transacting life settlements as a life agent. They would not need to renew their Life Settlement Broker License. This bill would define various specified terms including a "life settlement contract" as a written agreement solicited, negotiated, or entered into in this state between a provider and an owner, establishing the terms under which compensation or anything of value will be paid, which compensation or thing of value is less than the expected death benefit of the insurance policy or certificate, in return for the owner's assignment, transfer, sale, devise, or bequest of the death benefit or any portion of an insurance policy or certificate of insurance for compensation, provided that the minimum value for a life settlement contract shall be greater than a cash surrender value or accelerated death benefit available at the time of an application for a life settlement contract. "Life settlement contract" also includes a premium finance loan and the transfer for compensation or value of ownership or beneficial interest in a trust or other entity that owns such policy if the trust or entity was formed for the purpose of acquiring one or more life insurance contracts. This bill would define "stranger-originated life insurance" (STOLI), a practice to initiate the issuance of a life insurance policy for the benefit of a third-party investor, who at the time of policy origination, had no insurable interest in the life of the insured. This bill would also define "fraudulent life settlement act," as specified. This bill would prohibit the transaction of a life settlement within the two-year period commencing the date of the issuance of the policy, as specified. This bill would provide that the commissioner may suspend or revoke a person's license to transact life settlements if he or she determines that it is contrary to the best interests of the public that the person continue to transact life settlements. This bill would also permit the commissioner to assess a civil penalty of up to $10,000 on a licensee. This bill would also specify the rights of and the notifications to policy applicants. The CDI estimates that it would require one staff counsel at and incur technology costs of $262,000 in FY 2009-10; a full-time staff counsel at $105,000 - $195,000 in FY 2010-11; and $536,000 - $1,158,000 in FY 2011-12, and $452,000 - $1,074,000 annually ongoing to for 1-3 staff counsels and 3-7 investigators to implement this bill. Page 3 SB 98 (Calderon) This bill is similar to SB 1224 (Machado), a bill that failed passage in the Assembly Health Committee in 2008. SB 1543 (Machado) contained similar provisions to SB 1224 and was vetoed by the Governor in 2008. The veto message read, "?Although I share the proponents' goal to ensure that life settlement transactions are properly regulated, I cannot sign this measure at this time. The provisions of this bill were amended into it very late in the legislative session. While many of the provisions were agreed to by all the parties involved, some of the provisions are still subject to worthwhile debate?." Due to the subjective nature of the veto message, it is unclear whether or not this bill addresses the Governor's comments. As proposed to be amended, this bill would provide that licensing fees on applicants for life settlement provider and broker licenses would be reasonable and sufficient to cover the costs incurred by the CDI to implement these provisions. This bill would require a life insurance producer to pay a fee, as determined by the commissioner, for each license term the producer intends to operate as a life settlement broker and for the producer to pay the fee at the same time and in the same manner as he or she pays renewal fees.