BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON INSURANCE
                             Senator Richard Roth, Chair
                                2015 - 2016  Regular 

          Bill No:              AB 2366       Hearing Date:    June 22,  
          2016
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          |Author:    |Dababneh                                             |
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          |Version:   |March 16, 2016    Amended                            |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Hugh Slayden                                         |
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                         Subject:  Long-term care insurance


          SUMMARY     Exempts insurers that offer a policy which combines both life  
          and long-term care coverages from the requirement to offer the  
          new benefits or benefit eligibility criteria to their existing  
          long-term care insurance (LTCI) policy.  

           
          DIGEST
            
          Existing law


            1.  Provides for the regulation of LTCI and life insurance by the  
              California Department of Insurance (CDI) and prescribes various  
              requirements and conditions governing those products.


           2.  Requires LTCI carriers to offer new benefit or benefit  
              eligibility criteria to existing policyholders as either a  
              replacement policy or a rider on the existing policy.


           3.  Authorizes the Insurance Commissioner to waive the requirement  
              under certain conditions.
           
          This bill









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            1.  Clarifies that the offer must be made within 12 months that  
              the new policy series is made available in this state.


           2.  Limits, for all LTCI policies, the requirement to offer new  
              benefits to only those changes that are material in nature,  
              but not to "minor" changes such as changes to elimination  
              periods, benefit periods, and benefit amounts.


           3.  Exempts all life insurance policies or riders that contain  
              accelerated LTCI benefits.


           COMMENTS
            
          1.  Purpose of the bill   According to the author, existing law  
              requires insurers offering new LTCI policies to offer the  
              "new" coverage to their existing LTCI policyholders whenever  
              a new product is developed and approved for sale in the  
              state.  The offer statute was established when individual  
              "standalone" LTCI policies were the standard, but is now  
              being applied to "hybrid" products for policyholders where  
              it often does not make sense.  Hybrid products typically pay  
              for LTCI expenses by accelerating the death benefit of a  
              life insurance policy or annuity contract, while standalone  
              LTCI products are based on premiums paid specifically for  
              LTCI benefits.  The offer requirement hinders the ability of  
              companies to make new products available for consumers,  
              creates a compliance debacle for new hybrid products, and  
              can be extremely confusing or misleading to existing  
              policyholders. 

              The author further states that this bill represents a modest  
              change in the law that will assist in the development of new  
              innovative LTCI products, as wells as protect many existing  
              policyholders from being needlessly confused by an updated  
              offer every time a new LTCI product is developed. 

           2.  Background   LTCI is a product with a troubled history that  
              has spawned a rigorous regulatory regime.  LTCI policies are  
              subject to a myriad of regulatory controls including prior  
              approval requirements for policies and advertisements, rate  
              regulation, and mandated benefits.  These elaborate controls  








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              have arisen from problems that prior LTCI products have had  
              in both product design (what services are covered and in  
              what quantity) and pricing.  Many early products only  
              covered a narrow range of services (mostly institutional  
              care) and did not cover needed services (LTCI services are  
              increasingly provided at home and in non-institutional  
              settings).  Additionally, these policies were severely  
              underpriced leading to drastically increasing premiums that  
              have grown are unaffordable for retirees with fixed incomes.  
               Consumers are purchasing fewer policies and carriers are  
              leaving the market.  In this year alone, two carriers have  
              suspended sales of individual products, leaving 10 carriers  
              actively selling individual LTCI in California.  

              Both LTCI consumers and insurers must anticipate service  
              needs and options decades before claim would likely be  
              filed.  Rapid development of medical and other technologies  
              that are changing the way we age and die in dramatic ways  
              make needs even less predictable.  Even if the "what" of  
              services doesn't change over that time span, the "how" and  
              the cost of LTC services will likely be very different in 20  
              years.  

              Insurers have combined life insurance and LTCI to make the  
              product appealing to a broader range of consumers.  These  
              products offer a sort-of "two-for-one" that provides some  
              LTCI coverage and a death benefit.  Although not cheaper  
              than an LTCI policy, they are likely less expensive than  
              purchasing two separate policies.  These new products are  
              relatively new and have increased in popularity as concerns  
              have grown over premium increases, regulatory challenges,  
              and hostile markets, for LTCI.  

              These policies "accelerate" the death benefit when the  
              insured develops a qualifying disability.  Use of the LTCI  
              benefit reduces the death benefit.  These policies are  
              sometimes referred to as "hybrid" products and are offered  
              as a single package or the LTCI benefit may be offered as a  
              rider.  These contracts otherwise behave like, and are  
              subject to most of the same Insurance Code provisions as  
              standard LTCI policies, except they use an underlying life  
              insurance policy to fund the benefit.

              Life Insurance.  In addition to a variety of LTCI benefit  








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              options, life insurance comes in a variety of forms.  Whole  
              life insurance usually remains in effect over the life of  
              the insured. Premium payments remain level, but early  
              payments exceed the actual cost of insurance.  The extra  
              premium builds a reserve (cash value) which helps pay for  
              the policy in later years as the cost of protection rises.  

              Universal life (UL) insurance offers a flexible alternative  
              because it allows the policyholder to change or skip premium  
              payments or change the death benefit more easily. The  
              policy, premium, death benefit and cash value are treated  
              separately. Cash values are accumulated by crediting premium  
              payments and interest to a fund from which deductions are  
              made for the expenses and cost of insurance.  Interest rates  
              are linked to an external index such as Treasury bills.  
              Because the cash value element of this type of policy is  
              interest rate sensitive, predictions of future costs are  
              highly dependent upon the accuracy of interest rate  
              projections.  Recently, some insurers have dramatically  
              increased premiums as a result of pervasive low interest  
              rates.

              Variable life insurance anchors the value of the death  
              benefit based on the performance of the investments  
              underlying the policy.  Variable universal life insurance  
              combines the flexibility of universal life insurance with  
              the investment account features of variable life insurance.

              Hybrid products may have a financial structure particular to  
              the specific type of life insurance product upon which it is  
              based (whole life, universal life, variable life, etc.) and  
              within each type there are different methods of allocating  
              premiums and earnings.  The LTCI benefits may be highly  
              integrated with the underlying policy or added on, in other  
              words the LTCI may be "built-in at the factory" or "bolted  
              on."

              Existing law requires LTCI carriers to offer new benefits  
              and benefit eligibility criteria to existing policyholders.   
              This gives the policyholders an opportunity to update their  
              policy.  However, because the new LTCI benefit might not  
              match or graft well onto the underlying life policy, forcing  
              new benefits to a mismatched life policy may produce  
              detrimental or nonsensical results.








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              Replacement Policies.  Concerns have been raised that  
              offering consumers of new LTCI benefits may invite them to  
              purchase new benefits that may not be appropriate.  Consumer  
              protections are in place and agents and brokers must go  
              through a special process for "replacement" policies, but  
              these replacements are not subject to all consumer  
              protections applicable to standard LTCI policies.

              The NAIC LTCI Model Regulation.  The National Association of  
              Insurance Commissioner adopts model laws and regulations and  
              establishes national standards.  This bill would more  
              closely conform California law to the NAIC's LTCI model  
              regulation.
              
           3.  Support   The sponsors, Association of California Life and  
              Health Insurance Companies and the American Council for Life  
              Insurers support this bill because they argue existing law  
              impedes the development of innovative products and may  
              confuse consumers.  They suggest that it would not be  
              appropriate to force an insurer that develops a new whole  
              life-LTCI product to offer the new LTCI features to  
              consumers with universal life insurance.  As a specific  
              example, an LTCI feature designed for whole life insurance  
              that funds additional LTCI benefits with dividends paid to  
              the policyholder would be meaningless when attached to a  
              universal life policy that does not pay dividends.

           4.  Concerns  California Health Advocates (CHA) has not taken a  
              formal position on the bill, but expresses concerns about  
              exempting hybrid policies.  CHA writes that the insurance  
              sold to cover long-term care costs has changed dramatically  
              over the last few decades.  The baby boom generation has  
              changed every institution it has passed through - from  
              schools to employment.  LTCI policies will inevitably change  
              as well.  Given that there has been a shift from traditional  
              LTCI to combination products, CHA believes that the offer of  
              new benefits or benefit eligibility is a necessary consumer  
              protection. 
           
          5.  Questions   


                a.      How frequently do consumers elect to purchase the  








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                  new benefits when offered for all types of LTCI  
                  coverage?


                b.      How many hybrid products have been approved that  
                  trigger the obligation to offer the new benefit to  
                  existing policyholders?
           
          6.  Prior and Related Legislation  

              SB 1091 (Liu) would define and establish standards for  
              alternate plans of care that permit an LTCI insurer,  
              insured, and the insureds medical provider to agree that the  
              policy will provide care that is not covered under existing  
              policy terms.


              SB 1348 (Liu) would require the Partnership for Long-Term  
              Care to provide additional and more affordable LTCI policy  
              options and would establish a task force to consider more  
              affordable policy design options.


           

          POSITIONS
            
          Support
           
          Association of California Life and Health Insurance Companies  
          (sponsor)
          American Council of Life Insurers
          National Association of Insurance and Financial Advisors -  
          California  

          Oppose
               
          None received 

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