BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          AB 1922 (Daly) - Workers' compensation policies:  ancillary  
          agreements
          
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          |Version: June 28, 2016          |Policy Vote: INS. 6 - 0         |
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          |Urgency: No                     |Mandate: No                     |
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          |Hearing Date: August 1, 2016    |Consultant: Debra Cooper        |
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          This bill meets the criteria for referral to the Suspense File.


          Bill  
          Summary:  AB 1922 would codify the definition of ancillary  
          agreement for purposes of worker's compensation insurance and  
          provide that the requirement to file ancillary agreements with  
          the Insurance Commissioner (IC) prior to issuance shall not  
          apply to an ancillary agreement between an insurer and certain  
          California employers, as specified, if the agreement does not  
          change the benefits or coverage under the worker's compensation  
          policy.


          Fiscal  
          Impact:  
           Potentially significant costs to the Department of Insurance  
            (CDI)  of $181,000 in fiscal year 2016-17, $352,000 in fiscal  
            year 2017-18, and ongoing costs of $317,000 per year for  
            analyzing filed ancillary agreements, identifying policies  
            exempt from filing, and ensuring compliance. (Insurance Fund)








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           Unknown, but potentially significant costs to CDI for their  
            Legal and Administrative Hearing Branches to pursue claims  
            identified by the audit and investigation team. (Insurance  
            Fund)


          Background:  Workers' compensation is a bargain between an employer and an  
          employee that any injuries incurred on the job will be paid for  
          in exchange for the employee giving up the right to sue. Some  
          employers opt for "large deductible" policies in which the  
          employer bears more of the risk in exchange for dramatically  
          lower premiums. 
          The requirement to file all workers' compensation policies and  
          endorsements was enacted in 1995. The IC has interpreted the  
          requirement to include ancillary agreements between the insurer  
          and the employer and states that filing is necessary to properly  
          regulate the business of insurance and insurance contracts in  
          California. Insurers have argued that the definition of  
          ancillary agreement remains vague and includes agreements that  
          have not traditionally been considered part of the policy to  
          file. 


          After several years of discussions and negotiations, new  
          regulations were adopted that took effect on April 1, 2016, that  
          define ancillary agreements and include them among forms that  
          must be filed with the IC to be approved or pass 30 days from  
          the date of filing without being disapproved. The forms are  
          subject to a filing fee. 




          Proposed Law:  
            This bill would:
           Define "ancillary agreement" and specify exclusions from the  
            definition.
           Provide that the requirement to file an ancillary agreement  
            with the IC prior to issuance shall not apply to an ancillary  
            agreement between an insurer and a California employer in  
            conjunction with a workers' compensation policy or endorsement  
            that contains a deductible obligation equal to or greater than  
            $250,000 if the employer meets at least 3 of the following  








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            criteria:
               -      Is represented by a broker for negotiations  
                 regarding the ancillary agreement and either has a  
                 full-time risk manager involved in the evaluation of an  
                 ancillary agreement or is represented by counsel during  
                 negotiations regarding an ancillary agreement;
               -      Has 500 or more employees;
               -      Has an annual nationwide payroll in excess of $20  
                 million;
               -      Has a workers' compensation manual standard premium  
                 on a countrywide basis in excess of $1 million.
           Provide that the exemption from filing ancillary agreements  
            does not apply to an ancillary agreement between an insurer  
            and a California employer that is issued to a co-employment  
            arrangement or that is negotiated, managed, or administered,  
            in whole or in part, by a managing general agent. 
           Provide that an ancillary agreement may not amend or revise  
            the coverage provided, or the benefits payable, under a  
            workers' compensation policy, or include charges or costs as  
            allocated loss adjustment expenses that are not defined as  
            allocated loss adjustment expenses in the California Workers'  
            Compensation Uniform Statistical Reporting Plan - 1995, unless  
            it is filed with and approved by the IC.
           Specify that the terms and conditions of a workers'  
            compensation policy and any endorsements shall take precedence  
            over the provisions contained in an ancillary agreement.
           Require that with any written quote to provide workers'  
            compensation coverage to a California employer, the insurer  
            must provide the insurance agent or broker for the employer a  
            draft of any ancillary agreement that the insurer reasonably  
            expects to require the employer to sign, together with a  
            notice that the terms of the ancillary agreement are  
            negotiable between the insurer and the employer.
           Require the insurer to notify the IC within 30 days after  
            execution of an ancillary agreement and prohibit the ancillary  
            agreement from being subject to filing with the IC or rating  
            organization, or approval by the commissioner 
           Specify that these changes apply to ancillary agreements  
            issued or renewed on or after January 1, 2017.
           Provide that, beginning January 1, 2022, an insurer that  
            intends to use a dispute resolution or arbitration agreement  
            to resolve disputes arising in California out of a workers'  
            compensation insurance policy or endorsement issued to a  
            California employer shall disclose to the employer,  








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            contemporaneously with any written quote that offers to  
            provide insurance coverage, that choice of law and choice of  
            venue or forum may be a jurisdiction other than California and  
            that these terms are negotiable.




          Related  
          Legislation:  AB 684 (Corbett, Chapter 566, Statutes of 2011)  
          requires an insurer that intends to use a dispute resolution or  
          arbitration agreement to resolve disputes arising in California  
          out of a workers' compensation insurance policy or endorsement  
          issued to a California employer to disclose to the employer,  
          contemporaneously with any written quote that offers to provide  
          insurance coverage, that choice of law and choice of venue or  
          forum may be a jurisdiction other than California and that these  
          terms are negotiable between the insurer and the employer.


          Staff  
          Comments:  
          Because insurers have only had to file ancillary agreements  
          since the April 1, 2016, regulation change, CDI does not have an  
          accurate estimate of the number of agreements that could be  
          filed or would be exempt from being filed. Under this bill, CDI  
          will also not know of ancillary agreements that qualify for the  
          large employer exception. CDI will, however, still have the  
          authority to request any documents it becomes aware of or audit  
          any insurer that it suspects of engaging in illegal or unfair  
          practices. 


          The recent regulations that took effect April, 1 2016, requiring  
          filing of ancillary agreements were cited by CDI as having no  
          direct or indirect state cost. According to CDI, since the new  
          regulations took effect, the department received very few  
          ancillary agreements, but some of the ancillary agreements CDI  
          received were, in fact, deficient when compared to CA law. For  
          these ancillary agreements, CDI worked with those insurers to  
          modify their initial filing to ensure compliance with the law,  
          and as a result, CDI has not had to further investigate any of  
          these agreements. 









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          With this bill, CDI predicts they would need an audit team of 3  
          (two analysts and one supervising examiner) to perform an  
          estimated 6 examinations per year. Additionally, because the  
          number and scope of any potential violations is unknown, it is  
          difficult to predict the workload for CDI's Legal and  
          Administrative Hearing Branches as a result of information  
          gathered from audits. 




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