BILL ANALYSIS Ó SENATE COMMITTEE ON INSURANCE Senator Richard Roth, Chair 2015 - 2016 Regular Bill No: AB 1072 Hearing Date: June 24, 2015 ----------------------------------------------------------------- |Author: |Daly | |-----------+-----------------------------------------------------| |Version: |June 10, 2015 Amended | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Hugh Slayden | | | | ----------------------------------------------------------------- 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. AB 1072 (Daly) Page 2 of ? 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. AB 1072 (Daly) Page 3 of ? 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: AB 1072 (Daly) Page 4 of ? "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 AB 1072 (Daly) Page 5 of ? 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. AB 1072 (Daly) Page 6 of ? 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. AB 1072 (Daly) Page 7 of ? 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 AB 1072 (Daly) Page 8 of ? 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 -- END -