BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 281| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- UNFINISHED BUSINESS Bill No: SB 281 Author: Calderon (D), et al. Amended: 9/6/13 Vote: 21 SENATE INSURANCE COMMITTEE : 9-0, 4/24/13 AYES: Calderon, Gaines, Corbett, Correa, Knight, Lieu, Nielsen, Price, Roth SENATE APPROPRIATIONS COMMITTEE : 7-0, 5/23/13 AYES: De León, Walters, Gaines, Hill, Lara, Padilla, Steinberg SENATE FLOOR : 38-0, 5/29/13 (Consent) AYES: Anderson, Beall, Berryhill, Block, Calderon, Cannella, Corbett, Correa, De León, DeSaulnier, Emmerson, Evans, Fuller, Gaines, Galgiani, Hancock, Hernandez, Hill, Hueso, Huff, Jackson, Knight, Lara, Leno, Lieu, Liu, Monning, Nielsen, Padilla, Pavley, Price, Roth, Steinberg, Torres, Walters, Wolk, Wyland, Yee NO VOTE RECORDED: Wright, Vacancy ASSEMBLY FLOOR : Not available SUBJECT : Life insurance: accelerated death benefits SOURCE : Association of California Life and Health Insurance Companies DIGEST : This bill authorizes the sale of life insurance with "accelerated death benefits." These policies allow policy CONTINUED SB 281 Page 2 owners to access death benefits when they experience a catastrophic or chronic illness. Assembly Amendments (1) delete the term "special benefit" and replace it with the defined term "accelerated death benefit," (2) generally revise the phrase "provision or supplemental contract" and replace it with the term "supplemental benefit," (3) revise and recast the required language of the provision or supplemental contract, as specified, (4) extend authorization for the Insurance Commissioner (Commissioner) to adopt reasonable rules and regulations to provisions relating to supplemental benefits that operate to safeguard life insurance contracts against lapse when the insured becomes totally disabled and those life insurance contracts with an accelerated death benefit, (5) delete the provision regarding attainment of age and instead authorize the waiver of premiums to continue for a period of time specified in the supplemental benefit, (6) define "accelerated death benefit" as a policy added to a life insurance policy to provide for the advance payment of any part of the death proceeds, payable upon the occurrence of a single qualifying event, as defined, (7) prohibit an insurer, for purposes of long-term care insurance, from imposing a certification requirement of more than 90 days, (8) require a life insurance policy with an accelerated death benefit provision to comply with specified requirements, (9) place limits on advertising and marketing, (10) prohibit an insurer, broker, agent, or other person from causing a policyholder to unnecessarily replace a long-term care policy with an accelerated death benefit policy, and provide certain notices when a life insurance policy or long-term care insurance policy are replaced, (11) provide that an insurer that fails to conform to the requirements of the above provisions would be subject to the provisions of existing law that provide for the imposition of a civil penalty, (12) authorize the Commissioner to disapprove any advertising that does not meet the bill's requirements, as specified, (13) require a policy, certificate, rider, or endorsement to include a provision giving the policyholder or certificate holder the right to appeal to the insurer a decision regarding benefit eligibility, and (14) delete obsolete provisions and make conforming changes. ANALYSIS : Existing law: CONTINUED SB 281 Page 3 1. Governs the business of insurance, and defines various types of insurance for these purposes, including life insurance and disability insurance. 2. Makes the requirements imposed on disability insurance contracts, except as provided, inapplicable to life insurance, endowment, and annuity contracts, or supplemental contracts thereto, that provide additional benefits in case of death or dismemberment or loss of sight by accident, or that operate to safeguard contracts against lapse, or give a special surrender benefit, or a special benefit, as specified. 3. Provides the language required as part of a provision or supplemental contract governed by these provisions. 4. Requires a licensed health care practitioner, independent of the insurer, to certify that an insured meets the definition of a "chronically ill individual," as specified by federal law, for purposes of establishing eligibility for benefits under a long-term care policy or certificate that provides home care benefits. 5. Requires a licensed health care practitioner, independent of the insurer, to certify that an insured meets the definition of a "chronically ill individual," as specified by federal law, for purposes of establishing eligibility for benefits under a long-term care policy or certificate that provides home care benefits. 6. Authorizes the Commissioner to adopt reasonable rules and regulations necessary to administer and carry out the purposes of certain provisions relating to the required language in a provision or supplemental contract. 7. Authorizes provisions or supplemental contracts that operate to safeguard life insurance contracts against lapse, in which the insurer waives the premium or monthly deduction for a life insurance contract when the insured becomes totally disabled, and where the waiver continues until the end of the insured's disability, or until the attainment of an age established by the insurer. CONTINUED SB 281 Page 4 This bill: 1. Defines "accelerated death benefit" as part of a life insurance policy that permits the advance payment of part of the death benefit based on a catastrophic or chronic illness that meets requirements including: A. The amount of the benefit payment is fixed at the time of application. B. The payment of the benefit is not conditioned on receiving long-term care or medical services. C. The benefit may be paid either in a lump sum or periodic payments. D. There are no restrictions on the use of the benefit payment. E. The insurer cannot impose pre-existing condition limitations. F. The insurer cannot condition payment of the benefit on hospitalization or institutionalization of the insured. 2. Permits insurers to require the opinion of a qualified health care practitioner that the applicant meets the federal definition of a chronically ill individual before paying the accelerated death benefit. 3. Permits the insurer to require that a chronic illness is expected to last longer than 90 days to be eligible for an accelerated death benefit. 4. Specifies that an accelerated death benefit based on a chronic illness is not, and may not be marketed as, long-term care insurance. 5. Prohibits an insurer, for purposes of long-term care insurance, from imposing a certification requirement of longer than 90 days. 6. Requires accelerated death benefit contracts filed with the Commissioner to include: CONTINUED SB 281 Page 5 A. A written disclosure detailing the requirements for requesting an accelerated death benefit payout and the effect of such a payout on the death benefit and eligibility for public assistance programs and potential tax liability. B. A requirement that agents make specified disclosures with the application. C. A requirement that agents provide information regarding the impact of claiming an accelerated death benefit on the value of the policy. D. A requirement that the mandated disclosure include a description of costs related to accelerated death benefits. E. An actuarial memorandum detailing the operation of the accelerated death benefit. 7. Requires the insurer to provide the insured a statement of the costs for the accelerated death benefit claim. 8. Permits insurers to ask simple "yes"/"no" questions regarding the applicant's medical condition for underwriting purposes. 9. Requires group life insurance policies with accelerated death benefits to include a right to convert the group policy to an individual policy with a comparable accelerated death benefit. 10.Establishes maximum interest rates that may be used when calculating the amount of an accelerated death benefit. 11.Permits policy holders to claim an accelerated death benefit after a policy has lapsed if the qualifying event occurred before the policy lapsed. 12.Requires insurers offering accelerated death benefits with a term life insurance policy to offer a waiver of premium benefit option as well. CONTINUED SB 281 Page 6 13.Provides for a 30 day "free look" period in which the insured may return the policy and receive a refund of premium for any reason. 14.Applies existing consumer protections related to the replacement of life insurance policies to accelerated death benefit policies. 15.Requires insurers and agents to provide specified notices when a consumer is replacing a long-term care insurance policy with a life insurance policy that includes accelerated death benefits. 16.Requires marketing materials and advertisements for accelerated death benefits to include statements distinguishing the accelerated death benefit from long-term care insurance, describing the benefit, and the tax status of benefit payments. 17.Prohibits insurers from cancelling or refusing to renew an accelerated death benefit based on the age or mental/physical health of the insured. 18.Prohibits insurers from increasing premiums for accelerated death benefits because of a divorce. 19.Requires insurers to provide the Commissioner with any printed advertising for accelerated death benefits prior to its use. 20.Permits the Commissioner to disapprove advertising that does not meet the requirements of the Insurance Code. 21.Requires insurers to stop using advertising that has been disapproved by the Commissioner. 22.Requires insurers to train their agents regarding the differences between accelerated death benefits and long-term care insurance. 23.Provides that an insurer that fails to conform to the requirements of the above provisions is subject to the provisions of existing law that provide for the imposition of a penalty against any person who engages in any unfair method CONTINUED SB 281 Page 7 of competition or any unfair or deceptive act or practice in the business of insurance, as provided, including civil penalties as well as a misdemeanor for an insurer intentionally advertising insurance that it will not sell. 24.Makes numerous technical and clarifying changes to the laws governing the waiver of premium and waiver of surrender charge benefits for life insurance policies. 25.Provides that no state reimbursement to local agencies is necessary under provisions of this bill. Background Accelerated death benefits are life insurance benefits that allow a policy holder to access all or a portion of a death benefit based on the occurrence of a qualifying event. These benefits can be incorporated into the original policy or added as a rider. Currently, at least 42 other states, 41 of which are members of the Interstate Insurance Product Regulation Commission (IIPRC) and New York, offer some form of accelerated death benefits. Life insurance provides a cash benefit to beneficiaries when the insured dies. According to the American Council of Life Insurers, in 2011, total life insurance coverage in the United States amounted to over $19.2 trillion dollars. Although, life insurance may be sold as group policies, individual life insurance accounts for over 57% of the life insurance market. Individual life insurance policies are commonly bought as either permanent or term policies. An accelerated death benefit permits the owner of a life insurance policy to access a portion or all of the death benefit prior to the death of the insured (the measuring life of the policy) on the occurrence of a qualifying event while the insured is still alive. California law does not recognize most of the common triggers for accelerated death benefits. The following description is based on the Standards for Accelerated Death Benefits adopted by the IIPRC in 2007. Under the IIPRC standards, qualifying events or "triggers" must include a terminal illness trigger and may include additional triggers for one or more of the following conditions: CONTINUED SB 281 Page 8 1.A condition that requires extraordinary medical intervention, such as major organ transplant or continuous artificial life support, without which the insured would die; 2.A condition that usually requires continuous confinement in an institution, as defined in the form, and the insured is expected to remain there for the rest of his/her life; 3.A specified medical condition that, in the absence of extensive or extraordinary medical treatment, would result in a drastically limited life span (such as end-stage renal failure, invasive cancer, AIDS, etc.); or 4.A chronic illness defined as permanent inability to perform, without substantial assistance from another individual, a specified number of activities of daily living (bathing, continence, dressing, eating, toileting and transferring), and/or permanent severe cognitive impairment and similar forms of dementia. The insurer may provide for a reasonable expense charge for accelerating the benefit on most features. (The IIPRC requires the terminal illness trigger but does not allow the insurer to charge it.) Frequently, policy owners are not charged for the benefit until the acceleration. Once written proof of eligibility is submitted, the benefit becomes due immediately. Although the insurer may specify a range or particular amount of the death benefit that may be accelerated, the insurer must provide the policy owner the option to receive payment in a lump sum, but may allow the policy owner to accept periodic payments for a time certain (maybe to minimize taxes). The insurer may also reduce the lump sum payment according to any outstanding policy loans or charges due at the time of acceleration. If only a portion of the death benefit is accelerated, the portion payable upon death of the insured is reduced accordingly, and the premium and cash value are proportionally reduced as well. The chronic illness trigger currently proposed in this bill is based on the IIPRC standards and not intended for tax exemption, CONTINUED SB 281 Page 9 however, federal tax law (26 United States Code (USC) Section 101(g)) exempts proceeds from a life insurance policy from taxation if it is paid out by reason of terminal illness or chronic illness. USC Section 101(g) applies the definition chronically ill from 26 USC Section 7702B where an insured is: 1. Unable to perform (without substantial assistance from another individual) at least two activities of daily living for a period of at least 90 days due to a loss of functional capacity; or 2. Requiring substantial supervision to protect such individual from threats to health and safety due to severe cognitive impairment. Additional requirements apply to preserve the tax exemption including the need for the insured to be "certified" as chronically ill once a year and must follow a maximum per diem limit. Moreover, certain consumer protections are required under USC Section 101(g)(3). Long-term care insurance policies are distinct from life insurance policies because they are designed to provide assistance in the event that the insured becomes disabled, confined in an institution etc. These policies are highly regulated due to a history of escalating rates. Because chronic illness triggers of accelerated death benefits share eligibility criteria with long-term care insurance, California has not approved riders with chronic illness triggers unless those riders also comply with most provisions of the long-term care statute (Chapter 2.6 of Part 2 of Division 2 of the Insurance Code). Prior legislation . SB 1449 (Calderon, Chapter 567, Statutes of 2012) provided a waiver of the life insurance policy premium for disability, which allows future premiums due to be waived and the continuance of coverage until the end of the disability or the insured reaches an age as specified by the policy. Further, it also provided waiver of surrender charges for life insurance policies and annuities for specified health reasons. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes CONTINUED SB 281 Page 10 According to the Senate Appropriations Committee: Department of Insurance estimates that the cost to implement in fiscal year (FY) 2013-14 will be $250,000, in FY 2014-15 will be $734,000, and in FY 2015-16 and ongoing will be $407,000. Application fee revenue is projected to be $119,000 in FY 2013-14, $119,000 in FY 2014-15 and $15,500 in FY 2015-16 and subsequent fiscal years. Additional fee revenue of $50,000 to $90,000 over FY 2013-14 and FY 2014-15 for the $1 special assessment insurers pay for each life insurance policy issued, dependent on whether or not consumers purchase the accelerated death benefit under a new policy or as a rider to an existing policy. SUPPORT : (Verified 9/9/13) Association of California Life and Health Insurance Companies (source) American Council of Life Insurers Department of Insurance National Association of Insurance and Financial Advisors of California State Farm Insurance Company ARGUMENTS IN SUPPORT : According to the Association of California Life and Health Insurance Companies, they are sponsoring this bill to expedite approval of one particular product option which will provide a very valuable consumer benefit, known as an accelerated benefit, which allows consumers to obtain all or a portion of a life insurance benefit early when there is a significant and pressing need. AL:k 9/11/13 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED SB 281 Page 11 CONTINUED