BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session AB 1922 (Daly) - Workers' compensation policies: ancillary agreements ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: June 28, 2016 |Policy Vote: INS. 6 - 0 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: No | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: August 1, 2016 |Consultant: Debra Cooper | | | | ----------------------------------------------------------------- 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) AB 1922 (Daly) Page 1 of ? 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 AB 1922 (Daly) Page 2 of ? 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, AB 1922 (Daly) Page 3 of ? 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. AB 1922 (Daly) Page 4 of ? 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. -- END --