BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1232| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 1232 Author: Cristina Garcia (D) Amended: 6/29/15 in Senate Vote: 21 SENATE INSURANCE COMMITTEE: 8-0, 7/8/15 AYES: Roth, Gaines, Berryhill, Glazer, Hall, Hernandez, Liu, Wieckowski NO VOTE RECORDED: Mitchell SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8 ASSEMBLY FLOOR: 77-0, 5/7/15 (Consent) - See last page for vote SUBJECT: Insurance Commissioner: administrative hearings SOURCE: California Department of Insurance DIGEST: This bill provides an applicant whose license to act as an insurance agent, broker, or solicitor has been denied by the California Department of Insurance (CDI) the option to request a hearing in front of an administrative law judge (ALJ) from CDI's Administrative Hearing Bureau (AHB) or the Office of Administrative Hearings (OAH), or permits the Insurance Commissioner (IC) to assign the case if the applicant fails to select a preference. ANALYSIS: AB 1232 Page 2 Existing law: 1) Requires a person acting in the capacity of an insurance agent, broker, or solicitor to hold a license issued by CDI. 2) Permits the IC to deny a license to an applicant for a range of reasons including a lack of qualification, conviction of any felony or a misdemeanor related to insurance, or for prior unlicensed activity. 3) Prohibits the IC from denying a license without providing the applicant a hearing held pursuant to the Administrative Procedure Act (APA). 4) Requires that most hearings of state agencies conducted pursuant to the APA be presided over by OAH ALJs. This bill: 1) Permits the applicant to choose, at the time a hearing is requested, whether to have an ALJ from CDI or from the OAH hear the appeal. 2) Permits the IC to refer the matter for hearing to either the OAH or to a CDI ALJ if the applicant does not indicate a preference. 3) Requires the IC to annually report for three years on the total number of hearings and the number of those cases heard by CDI ALJs, average number of days between case referral and when the ALJ issues a proposed decision, and outcome of the cases. Background The IC issues licenses and takes disciplinary actions, such as suspension or revocation, against a person who already holds a license ("licensees"). This bill would only impact a person that the IC has initially denied a license as an insurance AB 1232 Page 3 agent, broker, or solicitor ("applicant") and who has requested a hearing to challenge the reason for the denial. Every applicant must complete a background check prior to receiving a license as a part of the application and examination process. If the background check is cleared and the applicant has successfully passed the examination, a license is granted. However, for a variety of reasons, the IC may deny the license or grant a license with restrictions. The IC may deny the license without a hearing on certain grounds (such as conviction for any felony), but usually must give the applicant an opportunity to make a case for licensure. The hearing is the applicant's opportunity to prove that alleged facts or reasons for the denial are untrue, invalid, or should be considered along with mitigating factors. Unlike criminal and licensee discipline cases, the burden is on the applicant to show that he or she is fit for the license. The agency retains the burden of proving wrongdoing for which the applicant has not already been convicted, but only by a preponderance of the evidence or "more likely than not" standard. An adverse decision may brand the applicant as dishonest or untrustworthy and the applicant will have to disclose the decision anytime he or she applies for another professional license or some types of employment. Documents related to the case are usually public records and pleadings and final decisions are posted on the CDI website. The Hearing Process. When the applicant requests a hearing, CDI must serve a "statement of issues" explaining the basis of the denial. Once CDI mails the statement of issues, the applicant has 15 days to file a "notice of defense" that requests a hearing and notes any special objections. Once a hearing is requested, CDI will file the case with OAH to start the formal process and request OAH to set a hearing give the availability of the parties. This bill would allow the applicant to request a hearing with either the OAH or AHB when filing the notice of defense. If the applicant fails to select a preference, the IC could select the AB 1232 Page 4 forum. The agency and applicant will attempt to work out a settlement before the hearing that may include probationary terms. Often the applicant may want the license as soon as possible, but not always. An applicant may need time to establish a history of employment, advance professional training, sobriety (if the cause for denial involved drug or alcohol-related conduct) or other factor that favors licensure. At the hearing, the applicant may present witnesses, such as therapists, employers, friends, and others, who will testify on his or her behalf. CDI, on the other hand, will present witnesses and documents supporting a conclusion that the applicant is unfit for the license including witnesses or victims of a wrongful act. An ALJ from OAH presides over the hearing, accepts evidence, rules on legal questions, resolves discovery disputes, and submits a proposed decision to the IC. The ALJ is the guardian of the record that serves as the basis for the ultimate decision and any subsequent review. The IC, however, retains ultimate authority to make the decision and may adopt an ALJ's proposed decision entirely or adopt it with a reduced restrictions or probationary terms. To increase the restrictions or probationary terms, IC must reject the proposed decision and either decide the case on the existing record or refer it back to take additional evidence. Due Process Considerations. Due process demands a careful balancing of administrative efficiency and separation of powers. The roles played by a state agency become critical elements in the due process analysis. Some agencies serve as either prosecutor or judge and pose little to no risk of an unconstitutional consolidation of power. For example, the Department of Fair Employment and Housing investigates discrimination cases but prosecutes them in superior court. (Prior to 2012, the Fair Employment and Housing Commission would hear and decide those cases.) Other agencies, however, serve as prosecutor and judge, an arrangement that raises the risks of potential due process violations such as those involving improper ex parte contact or pro-agency bias by the decision-maker or hearing officer. AB 1232 Page 5 In order to protect due process rights, agencies that exercise prosecutorial and adjudicatory powers must internally separate those functions; for instance, staff involved in the investigation or prosecution of a matter may not advise the decision-maker on that matter. The APA regulates some internal agency conduct, such as ex parte communications, and requires that most cases be heard by an ALJ employed by OAH. Since OAH ALJs are exposed to a variety of regulations and agency practices, OAH judges may be less likely to establish practices and biases that favor the agency, especially when an ALJ is asked to rule on whether an agency has engaged in improper conduct or exceeded its authority. Despite the general trend to transfer cases to OAH, many agencies have kept their in-house ALJs. Some agencies use in-house ALJs to determine eligibility for public benefits or decide disputes between private parties (such as an employer and an employee). The Department of Social Services hears cases before in-house ALJs that involve the denial of benefits for several social assistance programs but it prosecutes actions against day care or residential facilities in front of OAH. Entities within the Department of Consumer Affairs, such as the Medical Board and Bureau of Automotive Repair, hear licensing disputes before OAH. The Public Utilities Commission (PUC) is a notable exception; the PUC needs its own expert ALJs given the complexity and unique nature of the issues and laws related to utility regulation. This is one reason why CDI uses its own ALJs to hear insurance rating matters. CDI is a state agency directed by the IC, a statewide elected official that holds quasi-legislative, prosecutorial, and quasi-judicial powers that are not subject to an administrative appeal process. AHB ALJs are appointed by the IC pursuant to civil service rules and may not be supervised directly by the IC or supervised directly or indirectly by an employee in the legal branch. A deputy commissioner writes the performance reviews of the Chief ALJ who writes the performance reviews and assigns the cases and other work to the other ALJs. AB 1232 Page 6 Length of Time to Resolve a Case. CDI data shows that for 2013 and 2014, it has taken, on average, 188.41 days from the date a Request to Set a Hearing was sent to OAH until CDI received the proposed decision from OAH. According to CDI, previous OAH data showed an average number of days to hear cases (start to finish) was approximately 162 days. CDI claims that it would be able to hear these cases within 30 days. According to OAH, it has taken 111 days from when OAH receives a Request to Set form, but notes that this time frame fits within two weeks of the parties' typical availability. OAH explains that CDI attorneys often indicate that they are unavailable for weeks or months. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No SUPPORT: (Verified8/18/15) California Department of Insurance (source) OPPOSITION: (Verified8/18/15) California Department of General Services ARGUMENTS IN SUPPORT: CDI has sponsored this bill because existing law does not provide the IC the authority to hear new licensee applicant cases unlike many other entities in the state. Currently the hearings are heard by OAH within the Department of General Services with only a handful of exceptions. OAH conducts hearings, mediations, and settlement conferences for more than 1,600 state, local, and county agencies, which can make it challenging to schedule hearings for AB 1232 Page 7 all outstanding applicants in a timely manner. This has led to a hearing process that can be lengthy for new licensee applicants and consumers, as well as being costly to CDI. Individuals with a pending application or a new licensee applicant are unable to work in a licensed capacity in the insurance industry and must wait for their case to be resolved. In many cases insurers and other related employers have significantly invested in these potential new agents, making delays extremely costly. Out of 370,000 licenses, CDI sends approximately 160 licensee cases per year to the OAH since the IC does not have the authority to assign licensing matters to the AHB within CDI. Sixty percent (or roughly 100) of those cases are new licensee applicant cases that could be heard by the AHB. This bill will enhance governmental efficiency by streamlining the licensee hearing adjudication process for new CDI licensee applicants. An administratively efficient process better serves new licensee applicants and keeps consumers protected. ARGUMENTS IN OPPOSITION: The Department of General Services opposes this bill it seeks to remove an unknown number of cases from OAH, which was established as the state's independent and neutral adjudicatory body, and place them under the jurisdiction of the AHB of the prosecutorial agency, the CDI. It also asserts that there is no data supporting the CDI's premise that this change would increase the efficiency of the hearing process. ASSEMBLY FLOOR: 77-0, 5/7/15 AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins NO VOTE RECORDED: Campos, Roger Hernández, Steinorth Prepared by:Erin Ryan / INS. / (916) 651-4110 AB 1232 Page 8 8/18/15 15:52:34 **** END ****