BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 1072 (Daly)
          Version: July 2, 2015
          Hearing Date: July 14, 2015
          Fiscal: Yes
          Urgency: No
          TMW


                                        SUBJECT
                                           
          Insurance:  firefighters' or police officers' benefit and relief  
                                    associations

                                      DESCRIPTION  

          This bill would require firemen's, policemen's or peace  
          officers' benefit and relief associations (associations) that  
          issue long-term disability or long-term care policies or  
          contracts to submit actuarial opinions, as specified, to the  
          Insurance Commissioner.  

          This bill would require associations that currently hold a  
          certificate of authority to file an actuarial opinion no later  
          than July 1, 2016, require that opinion to be completed no  
          earlier than December 31, 2013, and require associations seeking  
          a certificate of authority to submit an actuarial opinion.

                                      BACKGROUND  

          Historically, firemen's, policemen's, and peace officers'  
          benefit and relief associations originally provided help to  
          survivors of deceased officers and firefighters through a  
          charity type of mechanism wherein fellow peace officers and  
          firefighters provided monies to the surviving families.  In  
          order to operate, these associations could apply to the  
          California Insurance Commissioner (Commissioner) for a  
          certificate of authority, which is not subject to renewal once  
          it is issued.

          These associations evolved to provide valuable long-term  








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          disability coverage, long-term care coverage, and other types of  
          health and welfare plan coverage for their eligible members.   
          The associations may offer the coverage on a self-insured basis,  
          where the association is responsible for paying claims, or  
          through a group insurance policy, where the association enters  
          into a contract with a third-party insurance carrier.  This  
          coverage is not available to the general public and is generally  
          designed to address the specific needs of peace officers or  
          firefighters.

          This bill would require associations with a certificate of  
          authority to submit a one-time actuarial opinion (a statement  
          evaluating the company's pricing, underwriting, and exposure  
          controls), as specified, to the Commissioner.  This bill would  
          provide confidentiality and non-disclosure provisions for the  
          information submitted by the associations, as specified.

          This bill was heard by the Senate Insurance Committee on June  
          24, 2015, and passed out on a vote of 8-0.

                                CHANGES TO EXISTING LAW
           
           Existing law  generally prohibits a person from transacting any  
          class of insurance business without first being admitted for  
          that class, which is secured by procuring a certificate of  
          authority, granted upon conforming to specified requirements,  
          from the California Insurance Commissioner (Commissioner).   
          (Ins. Code Sec. 700.)
           
            Existing law provides that the commissioner shall examine every  
          domestic insurer before issuing to it a certificate of  
          authority, other than renewal, to transact any class of  
          insurance in California.  (Ins. Code Sec. 730(a).)  When  
          scheduling and determining the nature, scope, and frequency of  
          examinations, the commissioner shall consider, among other  
          things, actuarial opinions.  (Ins. Code Sec. 730(b).) 
           
            Existing law  authorizes the Commissioner in making insurer  
          examinations to have free access to all the books and papers of  
          the company, thoroughly inspect and examine all its affairs,  
          ascertain its condition and ability to fulfill its obligations,  
          ascertain if it has complied with all laws applicable to its  
          insurance transactions, appraise or cause to be appraised by  
          competent appraisers appointed by him or her all property in  
          which the insurer has or claims an interest, or which is  







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          security, in any form, for the payment of any debt or obligation  
          to the insurer, and, in conducting the examination, observe  
          those guidelines and procedures set forth in the Examiner's  
          Handbook adopted by the National Association of Insurance  
          Commissioners (NAIC).  (Ins. Code Sec. 733.)

           Existing law  provides that a commissioner may make public any  
          final or preliminary examination report, any examiner or company  
          workpapers or other documents, or any other information  
          discovered or developed during the course of any examination in  
          the furtherance of any legal or regulatory action which the  
          commissioner may deem appropriate.  (Ins. Code Sec. 735.5(a).)   
          However, all working papers, recorded information, documents,  
          and copies thereof produced by, obtained by, or disclosed to the  
          commissioner or any other person in the course of an examination  
          made are given confidential treatment and are not subject to  
          subpoena and not to be made public by the commissioner or any  
          other person, except as provided.  (Ins. Code Sec. 735.5(c).)
           
          Existing law  generally requires insurers to provide annual,  
          quarterly, and supplemental financial statements in conformity  
          with the standards adopted by the National Association of  
          Insurance Commissioners.  (Ins. Code Sec. 900 et seq.)

           Existing law  makes the actuarial documents, materials, or other  
          information in the possession or control of the Commissioner  
          provided in support of the Statement of Actuarial Opinion  
          confidential and privileged, and not made public by the  
          Commissioner or any other person and are exempt from disclosure  
          under the California Public Records Act (CPRA), not subject to  
          subpoena, and not subject to discovery or admissible in evidence  
          in any civil action brought by a private party.  (Ins. Code Sec.  
          923.6(f)(1).)
           
          Existing law  requires admitted life and disability insurers to  
          submit annual actuarial opinions or statements, as specified.   
          (Ins. Code Secs. 10489.15, 10506.4(d)(1)(B).)

           Existing law  exempts from public disclosure any memorandum or  
          material submitted in support of a life or disability insurer's  
          actuarial opinion unless:  (1) the insurer consents in writing  
          to disclosure; (2) the American Academy of Actuaries provides a  
          written request and statement for the materials, which are  
          required for professional disciplinary proceedings and that the  
          Academy observes the commissioner's confidentiality  







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          requirements; or (3) the insurer uses the confidential material  
          as part of its marketing efforts, releases the material to any  
          government agency other than a state insurance department, or  
          releases the material to any news medium.  (Ins. Code Sec.  
          10489.15(c)(8)(A).)

           Existing law  provides that the confidential material related to  
          a life or disability insurer's actuarial opinion shall be  
          subject to subpoena on the commissioner's consent or after  
          notice to the commissioner and all other interested parties and  
          a hearing in which the superior court determines that the need  
          for the subpoena outweighs the interests of the insurer or  
          actuary in preventing disclosure of the material and the public  
          interest and any ongoing investigation or proceeding conducted  
          by the commissioner will not be unnecessarily jeopardized by  
          compliance with the subpoena.  (Ins. Code Sec.  
          10489.15(c)(8)(B).)

           Existing law  , the CPRA, generally requires records maintained by  
          public agencies to be accessible to the public.  (Gov. Code Sec.  
          6250 et seq.)  Existing law exempts from public disclosure  
          applications submitted by insurance companies to state agencies.  
           (Gov. Code Sec. 6254(d)(1).)
           
          Existing law  makes firemen's, policemen's or peace officers'  
          benefit and relief associations (associations) formed for the  
          purpose of aiding their members or dependents of their members  
          in case of sickness, accident, distress, or death, are subject  
          only to certain provisions of the Insurance Code, as specified.   
          (Ins. Code Sec. 11400.)

           Existing law  prohibits associations from operating or doing  
          business in California without a certificate of authority, which  
          must be issued by the Commissioner unless he or she determines,  
          after examination, that the association does not comply with  
          specified requirements.  (Ins. Code Sec. 11401.)

           Existing law  authorizes associations to be incorporated or  
          unincorporated, but if incorporated they are prohibited from  
          issuing shares of stock.  (Ins. Code Sec. 11402.)
           
          Existing law  limits membership of an association solely to the  
          following or any combination thereof:
           members of police departments of municipal or public  
            corporations or districts;







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           members of fire departments of municipal or public  
            corporations or districts;
           peace or law enforcement officers who are regular and salaried  
            officers or employees of the state or of a single county or  
            other political subdivision or public or municipal  
            corporation;
           persons who are emergency medical services personnel and  
            employed by a fire department of a city, county, or district;  
            or
           persons who at the time of becoming members of such  
            association were qualified members.  (Ins. Code Sec. 11403.)

           Existing law  prohibits an association from paying, promising, or  
          agreeing to pay, either directly or indirectly, any  
          consideration of any nature for the solicitation or procuring of  
          members or applications for membership.  (Ins. Code Sec. 11404.)

           Existing law  requires trustees, directors or the governing body  
          of the association, by whatever name their office is known or  
          designated, to be elected by the membership of the association.   
          (Ins. Code Sec. 11405.)
          
          Existing law  prohibits moneys or property directly or indirectly  
          contributed to an association by its members from being paid out  
          as benefits to any persons other than its members, their  
          dependents, or beneficiaries nominated in writing by them.   
          (Ins. Code Sec. 11406.)

           Existing law  requires an association to be supported mainly by  
          contributions from its members, whether in the form of fees,  
          dues, assessments, or otherwise, and by donations made to it  
          from time to time.  (Ins. Code Sec. 11407.)

           This bill  would require each association that holds a  
          certificate of authority and that issues long-term disability or  
          long-term care policies or contracts to submit to the  
          Commissioner the opinion of a qualified actuary as to whether  
          the reserves and related actuarial items that support the  
          policies or contracts issued, including policies and contracts  
          issued by entities established by the association that provide  
          benefits, are based on assumptions that satisfy contractual  
          provisions, are consistent with prior reported amounts, and are  
          based on actuarial standards and procedures established by the  
          American Academy of Actuaries and the Actuarial Standards Board.  
           This bill would require the association that holds a  







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          certificate of authority to file its opinion no later than July  
          1, 2016, and would require that opinion to be completed no  
          earlier than December 31, 2013.

           This bill  would consider an association to have issued a  
          long-term care or disability policy or contract if it self-funds  
          all or part of the resulting obligation, but an association that  
          markets long-term policies or contracts issued by an insurer  
          that is admitted by the Department of Insurance to offer  
          insurance products in the state would be exempt from this  
          reporting requirement.

           This bill  would require an association seeking a certificate of  
          authority to file an opinion, to the extent feasible, that  
          establishes that it would have adequate resources to provide  
          benefits as required to satisfy its proposed contractual  
          obligations.

           This bill  would require the opinion to include an opinion with  
          supporting memoranda consistent with the same qualified actuary  
          as to whether the reserves and related actuarial items held in  
          support of the policies and contracts, when considered in light  
          of the assets held by the association with respect to the  
          reserves and related actuarial items, including, but not limited  
          to, the investment earnings on the assets and the considerations  
          anticipated to be received and retained under the policies and  
          contracts, and shall make adequate provision for the  
          association's obligations under the policies and contracts,  
          including, but not limited to, the benefits under any expenses  
          associated with the policies and contracts.

           This bill  would require the opinion include a memorandum, in  
          form and substance consistent with actuarial standards and  
          procedures acceptable to the American Academy of Actuaries and  
          the Actuarial Standards Board, in support of the opinion, and if  
          the association fails to provide an opinion and supporting  
          memoranda to the Commissioner that meets the requirements, the  
          Commissioner would be required to notify the association of the  
          deficiencies in the filing, and make a specific request that  
          identifies the issues that should be addressed in an amended  
          filing.

          This bill  would require the Commissioner, to determine after a  
          review of the filings from the associations, that the laws  
          governing these associations are inadequate to protect the  







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          interests of the members of the associations, he or she shall,  
          on or before July 1, 2017, whether to develop and deliver  
          recommendations to the Assembly Committee on Insurance and the  
          Senate Committee on Insurance regarding changes in the law that  
          would better protect the interests of members of the  
          associations.

           This bill  would provide that documents, materials, or other  
          information, including the opinion with supporting memoranda,  
          required to be submitted by an association, in the possession or  
          control of the Department of Insurance (Department) that are  
          obtained by, created by, or disclosed to the Commissioner or any  
          other person, are recognized as being proprietary and containing  
          trade secrets, and those documents, materials, or other  
          information would be required to be kept confidential by law and  
          privileged, not subject to disclosure by the Commissioner  
          pursuant to the CPRA, and not subject to subpoena, discovery  
          from the Commissioner, or admissible into evidence in any  
          private civil action if obtained from the Commissioner in any  
          manner.

           This bill  would prohibit the Commissioner from otherwise making  
          those documents, materials, or other information public without  
          the prior written consent of the association.

           This bill  would require an association that self-funds all or  
          part of the benefits to include the following language, or other  
          language approved by the Commissioner, in all contracts that are  
          not regulated by the Department, and in certificates evidencing  
          coverage under those contracts, in capital letters and in a  
          minimum of 12-point type:  "ALL OR A PORTION 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 LIFE AND HEALTH INSURANCE GUARANTEE  
          ASSOCIATION."

           This bill  would remain in effect only until December 31, 2018,  
          and as of that date would be repealed, unless a later enacted  
          statute, that is enacted before December 31, 2018, deletes or  
          extends that date.

           This bill  contains legislative findings and declarations that,  
          in order to protect proprietary information, it is necessary to  
          enact legislation that limits the public's right of access to  
          insurance holding company information provided under this bill.







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                                       COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            Insurance Code Section 11400 Benefit and Relief Associations  
            (which have evolved from more-than-a-century-old "widows and  
            orphans" associations for fallen safety officers) can offer  
            their members sophisticated "insurance-like" products  
            (long-term disability income programs similar to what  
            AFLAC-type insurance products offer; long-term care programs,  
            similar to what CalPERS and Genworth, among other insurers,  
            offer).  However, they can offer these benefits with ZERO  
            regulatory oversight.  In fact, some of these associations  
            openly market that they are "pay as you go" arrangements -  
            that is, current members are not funding their own future  
            benefits, but rather, they are funding past generations of  
            members' benefits, and future members will fund current  
            members' benefits.

            The statute authorizes any association that 1) raises its hand  
            and identifies itself as such an association to the DOI, 2)  
            has members who are policy/fire employees or dependents, and  
            3) elects its board of directors to operate within this  
            unregulated environment.

            The basic concern is that these [associations] have evolved to  
            the point of providing sophisticated insurance-like products,  
            and are funding their promises to pay benefits in  
            unsustainable ways.  Future benefits reductions (after members  
            have paid, but before the triggering event that entitles the  
            member to benefits) is not a "financing" mechanism that would  
            be acceptable with insurance, but is one of the tools these  
            associations can use if they do not have adequate funds to  
            meet all of their obligations.  Another tool - increasing  
            price on current members to pay for past members' benefits -  
            risks chasing away current members, with a resulting  
            disastrous impact on members who have expectations of  
            near-term or further in the future benefits.  In addition, at  
            least with respect to some of these programs, monthly  
            "premiums" being charged [] as low as 1/3 of what private  
            insurers charge for comparable benefits.








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            AB 1072 calls for a [one]-time actuarial filing with the  
            Insurance Commissioner so that a qualified, neutral analyst  
            can evaluate the financial soundness of these associations,  
            and make recommendations to the Legislature in the event it is  
            determined that current law does not adequately protect the  
            expectation of association members to receive the benefits  
            they have been paying for.

          2.  Confidential, non-disclosable, non-discoverable information  

          This bill would exempt actuarial opinions and all related  
          information and materials submitted to the Insurance  
          Commissioner (Commissioner) by a firemen's, policemen's, or  
          peace officer's benefit and relief association (association)  
          from disclosure under the California Public Records Act (CPRA),  
          a subpoena, and civil trial discovery requests.

              a.   CPRA confidentiality and non-disclosure
           
            The CPRA requires state and local agencies to make public  
            records available for inspection by the public, with specified  
            exceptions.  (Gov. Code Sec. 6250 et seq.)  The CPRA provides  
            for the confidentiality and non-disclosure of numerous classes  
            of information, including applications submitted by insurance  
            companies to a state agency and actuarial information of life  
            and disability insurers.  (Gov. Code Secs. 6254(d)(1),  
            6276.28.)

            Proponents argue that the goal of this bill is to ensure that  
            the benefits offered to, and paid for, by peace officers and  
            firefighters are actually available when they need them.   
            Proponents assert that the primary mechanism for carrying out  
            this goal is to ensure that associations that self-insure  
            long-term disability or long-term care coverage maintain  
            appropriate reserves, which would include the requirement to  
            use a certified actuary to assist in the determination of the  
            reserve.  Proponents assert that this bill would not regulate  
            the associations on the same basis as insurance companies  
            offering similar coverage, but, rather, the bill would provide  
            a modest degree or regulation to ensure the fiscal soundness  
            of the program and give the Commissioner authority to oversee  
            the associations.

            This bill would provide that actuarial opinion materials  
            required to be submitted to the Commissioner would not be  







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            subject to disclosure pursuant to the CPRA because of the  
            sensitive nature of the information and documents shared with  
            the Commissioner.  To protect the information submitted by the  
            associations to the Commissioner, this bill would apply the  
            existing confidentiality provisions that protect actuarial  
            opinion information provided for insurance companies.

              b.   Civil action discovery  
           
             Under this bill, all actuarial opinion information, documents,  
            and copies thereof obtained by or disclosed to the  
            Commissioner as required under this bill would not be subject  
            to subpoena, discovery, or be admissible as evidence in any  
            private party civil action.

            Generally, all working papers, recorded information,  
            documents, and copies thereof produced by, obtained by, or  
            disclosed to the Commissioner or any other person in the  
            course of an examination are given confidential treatment, are  
            not subject to subpoena, and cannot be made public by the  
            Commissioner or any other person.  (Ins. Code Sec. 735.5(c).)   
            Existing law protects various types of insurance documents  
            submitted to the Commissioner from discovery or use as  
            evidence in civil actions.  (See, i.e., Ins. Code Sec.  
            923.6(f)(1) (insurer certification examination); Ins. Code  
            Sec. 935.8 (own risk and solvency information); (Ins. Code  
            Sec. 1215.8(a), (e) Insurance Holding Company System  
            Regulatory Act information.)  These protections from  
            disclosure ensure the critical cooperation and full disclosure  
            of insurers and affiliates who otherwise may be forced to seek  
            protection under other law.  Similarly, this bill would apply  
            these confidentiality and non-disclosure provisions to  
            actuarial opinion information submitted by associations.

          3.  Oppositions' concerns  

          In opposition, the San Diego County Public Safety Retiree  
          Medical Trust (SDCPSRMT), which is comprised of the members of  
          the Deputy Sheriffs' Association of San Diego County, the San  
          Diego County Probation Officers' Association, the San Diego  
          County Supervising Probation Officers Association, and the San  
                                                               Diego County District Attorney Investigator's Association,  
          argues that this bill would, in essence, eliminate the ability  
          for public safety associations throughout the State to continue,  
          or assume, the responsibility of providing their members with  







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          reasonable and reliable benefits of which the members themselves  
          have direct control over.  Further, SDCPSRMT states that their  
          public safety trusts are models of transparency and  
          accountability with no documented financial issues or concerns.

          Additionally, the Los Angeles County Professional Peace Officers  
          Association, the Sacramento County Deputy  Sheriffs'  
          Association, the Long Beach Police Officers Association, the  
          Santa Ana Police Officers Association, and the California State  
          Lodge, Fraternal Order of Police raise concerns that this bill  
          would increase the operational costs if an actuarial opinion  
          review is applied to non-profit benefit associations, which have  
          been able to offer their members high quality benefits at a very  
          competitive rate by keeping administrative costs to a minimum,  
          and by rigorously pursuing statutory workers' compensation  
          benefits that are available to public safety personnel in  
          California.  These groups argue that the associations have never  
          failed to pay benefits to its members in the 40 plus years they  
          have been in existence.  However, these groups note that they  
          would not object to a retrospective financial review of the  
          long-term disability plans offered by associations, as long as  
          the review focuses on whether the revenue and claims of the plan  
          have been managed in compliance with existing and historical  
          standards applied to such "pay as you go" long-term disability  
          plans.


           Support  :  Anaheim Police Association; Madera Police Officers  
          Association; Monterey County Probation Association; Oakland  
          Police Officers Association; San Bernardino County Safety  
          Employees' Benefit Association; Santa Monica Police Officers'  
          Association; Shasta County Deputy Sheriff's Association; Simi  
          Valley Police Officers' Association; Ventura County Deputy  
          Sheriffs' Association

           Opposition  :  San Diego County Public Safety Retiree Medical  
          Trust

                                        HISTORY
           
           Source  :  California Correctional Peace Officers Association  
          Benefit Trust Fund; California State Firefighters' Association;  
          Peace Officers Research Association of California

           Related Pending Legislation  :  SB 696 (Roth, 2015) would  







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          establish a new method of calculating reserve requirements for  
          various types of life and disability policies and contracts  
          using a principle-based valuation that meets specified  
          conditions and make confidential all information, documents, and  
          copies thereof obtained by or disclosed to the Insurance  
          Commissioner or any other person in the course of an examination  
          or investigation regarding life and disability insurance reserve  
          liabilities, and all information required to be reported to the  
          Commissioner in support of reserve liability opinions.  SB 696  
          would also exempt that information from disclosure under the  
          California Public Records Act and provide that the information  
          would not be subject to subpoena or discovery from the  
          Commissioner or admissible into evidence in any private civil  
          action if obtained from the Commissioner in any manner.

           Prior Legislation  :  AB 2366 (Bocanegra, 2014) would have  
          authorized the Commissioner to receive and investigate formal  
          written complaints made against a firemen's, policemen's, or  
          peace officer's benefit and relief association that has been  
          issued a certificate of authority, as specified, and would have  
          authorized the Commissioner, after providing notice and an  
          opportunity for a hearing, to suspend or rescind the certificate  
          if a complaint cannot be resolved in a timely manner.  AB 2366  
          was held without hearing in the Assembly Insurance Committee.

           Prior Vote  :

          Senate Insurance Committee (Ayes 8, Noes 0)
          Assembly Floor (Ayes 79, Noes 0)
          Assembly Appropriations Committee (Ayes 17, Noes 0)
          Assembly Insurance Committee (Ayes 12, Noes 0)

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