BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON INSURANCE
                             Senator Richard Roth, Chair
                                2015 - 2016  Regular 

          Bill No:              AB 1072       Hearing Date:    June 24,  
          2015
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          |Author:    |Daly                                                 |
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          |Version:   |June 10, 2015    Amended                             |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Hugh Slayden                                         |
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           Subject:  Insurance: firefighters' or police officers' benefit  
                              and relief associations.


           SUMMARY    Requires firefighters' and police officers' benefit and  
          relief associations to file an actuarial opinion with the  
          Insurance Commissioner (IC) that meets specified standards.

           
          DIGEST
            
          Existing law


            1.  Prohibits a person, generally, from transacting insurance  
              without a certificate of authority from the IC and  
              establishes laws and standards applicable to the business of  
              insurance.


           2.  Provides that firemen's, policemen's or peace officers'  
              benefit and relief associations ("associations") formed for  
              the purpose of aiding their members and dependents in case  
              of sickness, accident, distress, or death shall not be  
              subject to any other provision of the Insurance Code nor any  
              state law relating to insurance.


           3.  Requires associations to obtain a certificate of authority  
              from the IC.







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           4.  Limits membership to current and former members (who  
              qualified at the time of membership in the association) of  
              police departments and fire departments; regular and  
              salaried peace or law enforcement officers; and emergency  
              medical services personnel employed by a fire department of  
              a city, county, or district.


           5.  Requires that the trustees, directors or governing body be  
              elected by the membership.


           6.  Prohibits the use of money or property from being paid out  
              as benefits to anyone other than its members, their  
              dependents, or beneficiaries nominated in writing by them.


           7.  Provides that the association shall be supported mainly by  
              contributions from its members and by donations.
           






























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          This bill


            1.  Requires associations that issue long-term disability or  
              long-term care policies or contracts to submit an actuarial  
              opinion and supporting memorandum to the IC, no later than  
              July 1, 2016, as to whether the reserves and related  
              actuarial items that support the policies or contracts are  
              based on assumptions that satisfy contractual provisions,  
              consistent with prior reported amounts, and based on  
              actuarial standards and procedures established by the  
              American Academy of Actuaries and the Actuarial Standards  
              Board.


           2.  Permits the association to submit a previously prepared  
              opinion if it had been completed no earlier than December  
              31, 2013.


           3.  Exempts associations that offer benefits through an  
              admitted insurer.


           4.  Provides that an association that is seeking a certificate  
              of authority to file, if feasible, an actuarial opinion that  
              it would have adequate resources to provide the benefits  
              promised in its contracts.


           5.  Requires the IC to notify an association if a filing fails  
              to meet the standards required by the bill and specify  
              issues that are deficient to be addressed in an amended  
              filing.


           6.  Prohibits an association that receives a notification from  
              indicating that it is operating under the auspices of the  
              authority of any provision of the Insurance Code, the IC or  
              the Department of Insurance, and shall, commencing 30 days  
              from the date of the notification, include the following  
              language in all contracts that are not regulated by CDI, and  
              in certificates evidencing coverage under those contracts:  








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              "THE BENEFITS PROVIDED BY THIS CONTRACT ARE NOT SUBJECT TO  
              REGULATION BY THE CALIFORNIA DEPARTMENT OF INSURANCE, AND  
              THE CONTRACT IS NOT GUARANTEED BY THE CALIFORNIA INSURANCE  
              GUARANTEE ASSOCIATION."


           7.  Authorizes the IC to make recommendations to the Assembly  
              and Senate Committees on Insurance in the event a review of  
              the filings required by the bill leads to the conclusion  
              that existing law does not adequately protect the interests  
              of the police and fire members of the associations.


           8.  Sunsets on December 31, 2018.


           COMMENTS
            
          1.  Purpose of the bill   According to the CCPOA Benefit Trust  
              Fund ("Trust"), one of the co-sponsors, this bill is  
              intended to insure that benefits offered to, and paid for,  
              by peace officers and firefighters are actually available  
              when they need them.  The primary mechanism for carrying out  
              this goal is to insure that such benefits are offered on an  
              actuarially sound basis.  The trust notes that AB 1072 does  
              not propose to regulate these associations on the same basis  
              as insurance companies offering similar products.  Rather it  
              proposes only a one-time check to insure the fiscal  
              soundness of the programs.

           2.  Background   Police, peace officer, and firefighter  
              benevolent associations have been around in the United  
              States for well over 150 years.  These groups formed to  
              provide aid and assistance to either injured public safety  
              employees or their dependents.  In general, the benevolent  
              associations were made up of officers in the same  
              department.  As needs and sophistication developed, the  
              nature of benefits developed as well.  

              The nature of benefits provided by these associations has  
              grown to the point where they resemble sophisticated  
              insurance products including long-term disability income  
              (LTD) benefits and long term care (LTC) benefits.  As the  
              nature of benefits has expanded, and the number of members  








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              has expanded, concerns have arisen about the unregulated  
              status of these associations.  These concerns have led many  
              associations to shift from self-insured arrangements  
              (entities that keep the money, charge membership fees, and  
              pay benefits out of the funds collected) to insured programs  
              (where the entities contract with a licensed insurance  
              company to provide the benefits).  


              The associations follow the pattern shared with other  
              mutually beneficial risk management arrangements exempt from  
              insurance regulation.  These associations may not sell  
              benefits to the public, they must limit their membership to  
              specified public safety personnel, and the members must  
              elect the governing body.  It also prohibits the use of  
              contributions from its members for use as benefits for  
              anyone other than members, their dependents, or  
              beneficiaries. 


              The law does not limit these associations to a "one  
              employer" or "one union" model; a benefit association may be  
              established by virtually anyone as long as it meets the  
              necessary organizational qualifications.  It may offer any  
              scope of health care, disability and related benefits it  
              chooses.  Since they are organized around employment, they  
              are often connected with organized labor and frequently  
              qualify as ERISA plans subject to oversight by the U.S.  
              Department of Labor.


              There are approximately 70 of these associations in the  
              various forms operating in California, but the following  
              entities are among the largest. The California Law  
              Enforcement Association (CLEA) for police and the California  
              Association of Professional Firefighters (CAPF) for  
              firefighters are multi-employer associations that offer LTD  
              benefits; their joint trust, the National Peace Officers and  
              Fire Fighters Benefit Association (NPFBA), offers LTC  
              benefits.  PORAC has a multi-employer association that  
              offers LTD benefits and CCPOA is a single union association  
              that offers LTD benefits.  










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              Insurance regulation typically requires that an insurer must  
              have adequate resources to make good on promised benefits.   
              This is usually, but not always, established through  
              reserving requirement.  As the sophistication of promised  
              benefits has grown, the sophistication of financial  
              regulation to ensure promises has evolved as well.  However,  
              benefit relief associations are not subject to commercial  
              insurance oversight and there is no formal mechanism at the  
              state level for evaluating the status of the system.   


              Some associations rely on a "pay as you go" model to fund  
              their benefit promises.  That is, they are depending on the  
              premiums paid currently by active members to fund at least  
              some of the obligations owed to members who accrued their  
              membership rights in the past.  These benefit associations  
              are voluntary; if the association has to adjust  
              contributions or benefits in a way that make the product  
              unattractive, the association could suffer from adverse  
              selection or a self-perpetuating cycle of premium  
              increase/benefit reductions and membership losses.  On the  
              other hand, some of these groups providing pay-as-you-go  
              benefits have been offering these benefits for up to 30  
              years and have not failed to make good on promised benefits.  
               
           
               This bill would require these associations to provide an  
              opinion by a qualified actuary with a supporting memorandum  
              regarding the association's reserves and related practices  
              are actuarially sound.  The IC will review and analyzes all  
              of these opinions and may advise the Legislature on  
              recommended changes to existing law necessary or helpful in  
              making sure members receive promised benefits.

           3.  Suggested Amendments  

              The bill provides that if IC determines that the actuarial  
              opinion does not meet the standards provided in this bill,  
              the association shall not communicate that it is operates  
              under the auspices of the Insurance Code, the IC, or CDI,  
              and shall within 30 days include prescribed language in all  
              of its contracts that the benefits provided are not subject  
              to regulation by CDI or is a member of an insurance  
              guarantee association.








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              The proposed notice in the contract language is usually  
              required of similar insurance-like arrangements that are not  
              subject to the same standards as commercial insurers, such  
              as nonprofit risk pools, risk retention groups, and the  
              California Earthquake Authority.  The notice discloses  
              critical information to consumers regardless of whether the  
              association submits a compliant opinion.  

              Additionally, this provision authorizes the IC to prohibit  
              them from disclosing truthful information (that the  
              association operates lawfully under the auspices of the  
              Insurance Code Section 11400).  This raises issues of  
              commercial free speech, especially since the IC may only  
              suspend or rescind an association's authority for reason  
              unrelated to this bill.  For these reasons, the Committee  
              may wish to consider amendments that strike paragraph (3) of  
              subdivision (c) in proposed section 11401.5 and insert a new  
              section that requires all associations that self-funds all  
              or a part of the promised benefits to provide a notice in  
              its contracts and certificates, as appropriate, that it is  
              not regulated by CDI and not a member of the appropriate  
              insurance guarantee association.

              Given the importance and urgency of protecting members'  
              benefits, the Committee may wish to consider amendments that  
              would require the IC to make the report and recommendations  
              on or before July 1, 2017.

              The information provided to the IC under this proposal  
              involves sensitive and proprietary information.  Typically,  
              the type of information gathered in the course of a similar  
              examination of a commercial insurer would be exempted from  
              the California Public Records Act, the civil litigation  
              process, subpoena, etc.  The Committee may wish to consider  
              amendments that would add language to that effect in order  
              to encourage frank conversation between the association and  
              CDI.
           
          4.  Prior and Related Legislation   AB 2366 (Bocanegra, 2013-14)  
              proposed to authorize the IC to receive and investigate  
              written complaints against an association, and revoke an  
              association's certificate if those complaints could not be  
              resolved.  The bill was held in the Assembly Insurance  








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              Committee without hearing.
           

          POSITIONS
            
          Support
           
          CCPOA Benefit Trust Fund (co-sponsor)
          Peace Officers Research Association of California (co-sponsor)
          Anaheim Police Association
          San Bernardino County Safety Employees' Benefit Association
          California Correctional Peace Officers Association*
          California Firefighters' Association
          Madera Police Officers Association
          Monterey County Probation Association
          Oakland Police Officers Association
          Santa Monica Police Officers Association
          Shasta County Deputy Sheriffs Association
          Simi Valley Police Officers' Association
          Ventura County Deputy Sheriffs' Association
           

          Oppose
               
          None received

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