BILL ANALYSIS                                                                                                                                                                                                    Ó



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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          1072 (Daly)


          As Amended  August 19, 2015


          Majority vote


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          Original Committee Reference:  INS.


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


          The Senate amendments:


          1)Limit the number of associations required to comply with the  
            bill to those that provide long term disability and long term  
            care benefits.


          2)Exempt an association from the bill if the association merely  
            markets policies that are issued by licensed insurance  
            companies.









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          3)Add a confidentiality provision, similar to current law that  
            governs insurance companies that file similar information with  
            the commissioner, to protect against inappropriate disclosure  
            of proprietary financial information.


          4)Require associations that provide self-funded benefits to  
            members to include a disclosure statement in its contracts  
            warning members that the promised benefits are not subject to  
            state regulation or guarantees.


          5)Clarify the specifics of what must be included in the  
            actuarial opinion and related documents.


          EXISTING LAW:  


          1)Provides for the regulation of insurance by the commissioner,  
            through the Department of Insurance (DOI).


          2)Requires in most cases that any person or entity that accepts  
            money in exchange for a promise to pay benefits in the future  
            upon the occurrence of some event or fact is required to  
            obtain a certificate of authority (license) from the  
            commissioner to act as an insurer, and is subject to the full  
            range of regulations that govern insurers.


          3)Provides that a firefighters' or police officers' benefit and  
            relief association is totally exempt from all rules governing  
            insurance companies if:


             a)   It asks for a certificate from the commissioner;


             b)   It has an elected board of directors; and









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             c)   Its members are employees of police or fire departments,  
               or their dependents.


          4)Authorizes these associations to provide benefits to members  
            "in case of sickness, accident, distress or death."


          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee, pursuant to Senate Rule 28.8, negligible state costs.


          COMMENTS:  


          1)Purpose.  According to the sponsors, the Peace Officers  
            Research Association of California (PORAC) and the California  
            Correctional Peace Officers Association (CCPOA), there are  
            police and fire benefit associations that are operating in the  
            state that do not adequately reserve for their promise to pay  
            future benefits, and this inadequate reserving places the  
            safety officers who join those groups in a risky position that  
            they may not appreciate.  The bill is designed to provide a  
            neutral party - the Insurance Commissioner - with adequate  
            information to be able to make a judgment about the security  
            of benefits promised to members of these associations.


          2)Background.  Police 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 - a brotherhood of sorts.  As needs and  
            sophistication developed, the nature of benefits developed as  
            well.  These groups have been long-codified in California as  
            associations that are totally exempt from any insurance  
            regulation.  Current law states that these associations "shall  
            not be subject to any other provision of this code nor to any  
            law of this State relating to insurance, whether now existing  
            or hereafter enacted."








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            The potential problem is that the nature of benefits provided  
            by these associations has grown to the point where they  
            resemble, or are identical to, sophisticated insurance  
            products.  The two most common benefit offerings are  
            disability income benefits (very similar to the disability  
            income insurance available to Assembly employees through  
            AFLAC) and long term care benefits (very similar to the long  
            term care coverage available to Assembly employees through the  
            California Public Employees Retirement System (CalPERS)).   
            Disability income is often referred to as "long-term  
            disability" (LTD) and long-term care is referred to as LTC.   
            As the nature of benefits has expanded, and the number of  
            members has expanded, concerns have arisen about the  
            unregulated status of these associations.  These concerns have  
            led many associations to shift from self-insured entities  
            (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.)  Nonetheless, many associations have  
            continued to operate as self-insured (and therefore  
            unregulated) organizations.


          3)Association structure.  Fire and peace officer unions can form  
            benefit associations that are comprised only of the union's  
            members, for the benefit of the union members.  However, the  
            law does not limit these associations to a "one employer" or  
            "one union" model.  Thus, there can be a benefit association  
            established by virtually anyone, and as long as it is  
            comprised of qualified public safety members, elects its board  
            of directors, and seeks a certificate from the commissioner,  
            it can offer any scope of health care, disability and related  
            benefits it chooses, independent of any governmental  
            regulation.  One particular association group has organized  
            itself in this latter form.  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, and their  
            joint trust, the National Peace Officers and Fire Fighters  
            Benefit Association (NPFBA) offers LTC benefits.  PORAC has a  








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            multi-employer association that offers LTD benefits, and CCPOA  
            is a single union association that offers LTD benefits.  There  
            are approximately 70 of these associations in the various  
            forms operating in California, but the entities just noted are  
            among the largest.


          4)Reserving vs. Pay As You Go.  Whether to fully reserve for  
            future obligations, or whether it is prudent to rely on future  
            contributions from future members in order to fund benefits  
            for current members, appears to be the primary policy debate  
            posed by the bill.  It is a fundamental of insurance  
            regulation that an entity that accepts a consumer's money  
            today, on the promise to pay something in the future, must  
            have adequate resources to make good on that promise.  As the  
            sophistication of promised benefits has grown, the  
            sophistication of financial regulation to ensure promises are  
            kept has also grown.  However, in the case of these benefit  
            associations, there is no financial regulation, and thus  
            concerns have arisen as to whether legitimate government  
            oversight to protect association members' rights has developed  
            adequately in comparison to the nature of the future financial  
            promises that are now being made.


            CLEA, CAPF, and NPFBA acknowledge that they, at least  
            partially, 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.  This is not dissimilar to how social  
            security funding currently works.  The difference is that  
            social security is an "all in" governmentally mandated  
            program, and police and fire benefit associations are totally  
            voluntary.  Thus, if current members decide to simply stop  
            paying, which they have a right to do, the funding structure  
            may be problematic.


            The CLEA groups argue that they are mutual benevolent  
            associations, and the members have an affinity amongst  
            themselves, and this potential problem is not an issue.  They  








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            further point out that on both the LTD and the LTC side of  
            their groups' operations, they have never failed to make good  
            on promised benefits.  As a result, they argue strict  
            insurance-model reserving for this sort of self-insured  
            association is not necessary or appropriate.  The bill's  
            proponents are not convinced of this argument, and believe  
            more oversight is needed.  While proponents have concluded  
            that a financial regulatory program is in order, as the  
            "introduced" version of the bill called for, they support the  
            evaluation by a sufficiently sophisticated neutral regulator -  
            the Insurance Commissioner - as to whether existing  
            associations' financial structure is adequate to protect the  
            interests of members who are expecting benefits to be paid in  
            the future.


          5)LTC insurance.  Long term care insurance, a relatively new  
            insurance product, has proven to be a financial disaster to  
            the insurers and other large institutions that have attempted  
            to collect money today, to pay for complex benefits many years  
            in the future.  Most private insurers no longer sell LTC  
            insurance to new customers.  CalPERS recently froze its  
            program temporarily, and instituted a 95% rate increase.  On  
            one hand, this may suggest that alternatives to insurance are  
            needed.  On the other hand, this may suggest that as a  
            society, we have underestimated the true cost of funding LTC  
            services.  This discussion is relevant because the NPFBA trust  
            offers an LTC benefit program at a very favorable price.   
            According to the trust's own Web site, for comparable benefit  
            packages, pricing for the trust and other LTC providers is as  
            follows:


             a)   Trust:  $63 per month (maximum premium of $30,240)


             b)   CalPERS:  $170 per month


             c)   Genworth:  $262 per month










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             d)   John Hancock: $262 per month 


            According to proponents, the Trust's pricing is "too good to  
            be true" over the long term, and justifies further scrutiny.   
            The trust responds that over more than a decade, it has met  
            its contractual obligations, and that its ability to pay  
            benefits in both LTC and LTD over time suggests it can  
            continue to do so.  It also argues that the nature of its  
            members is a different mix than in CalPERS and other  
            commercial programs, and the different mix of members enables  
            its pricing to be more favorable.  Proponents are concerned  
            that it is relatively easy to pay LTC benefits in the short  
            run, but that other LTC providers such as CalPERS and private  
            insurers that have been at it longer discovered that  
            underpricing is a serious problem.  As a result, further  
            evaluation by the commissioner is warranted.


          6)Association bylaws vs. insurance policies.  One of the  
            distinctions between an insurance policy and an association  
            benefit is the nature of when benefit rights vest.  Under an  
            insurance policy, the benefits attach at the time the  
            policyholder pays premium.  An association can establish  
            through its bylaws that the specific benefits that a member is  
            entitled to receive vest when the right to benefits is  
            triggered.  That is, until the point where the disability that  
            triggers a disability income benefit, or an LTC benefit,  
            actually happens, the precise level of benefits has not  
            vested.  This flexibility allows an association to better  
            manage its risk; however, absent clear disclosure, it may  
            leave members with an impression that benefits are more  
            guaranteed than they really are.  This feature can be a  
            characteristic of all associations, but proponents argue that  
            those associations that under-reserve are more prone to having  
            to resort to benefit reductions in the future. 
          Analysis Prepared by:                                             
          Mark Rakich / INS. / (916) 319-2086FN: 0001834












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