BILL ANALYSIS
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
1868 (Jones)
Hearing Date: 8/2/2010 Amended: 7/15/2010
Consultant: Katie Johnson Policy Vote: BFI 10-0
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BILL SUMMARY: AB 1868 would prohibit the approval by the
California Department of Insurance of an insurance policy,
contract, certificate, or agreement offered, issued, delivered,
or renewed whether or not in California that includes a
discretionary clause that would permit the insurer to determine
eligibility for benefits or coverage.
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Fiscal Impact (in thousands)
Major Provisions 2010-11 2011-12 2012-13 Fund
CDI review of insurer policy likely minor Special*
filings to ensure compliance
*Insurance Fund
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STAFF COMMENTS:
Costs to CDI to continue to review and approve insurance
policies would be minor and absorbable. CDI is funded through
assessments paid by the insurers it regulates. Staff recommends
that the bill be amended to clarify that this prohibition of
approving any policy that would contain a discretionary
authority clause would become effective January 1, 2011.
This bill would prohibit the California Department of Insurance
(CDI) from approving any disability policy, which would include
life and health insurance policies, for issuance or delivery in
California that would include a provision that reserves
discretionary authority to the insurer to determine eligibility
for benefits or coverage, to interpret the terms of the policy,
or to provide standards of interpretation or review that are
inconsistent with California laws. This bill would state that
any discretionary authority clause within any policy, contract,
certificate, or agreement would be void and unenforceable;
however, this bill would not require CDI to re-approve all
policies to remove such clauses. This bill would define
"discretionary authority" to mean a policy provision that has
the effect of conferring discretion on an insurer to determine
entitlement to benefits or to interpret language that could lead
to a deferential standard of review by any reviewing court.
This bill would codify a decision made by then Insurance
Commissioner Garamendi in 2006 that it was CDI's departmental
policy that discretionary clauses violate the Insurance Code.
The department has since enforced that policy. Also, in Standard
Insurance Company v. Morrison, 584 F.3d 837 (2009), the Ninth
Circuit Court of Appeals held that a state Insurance
Commissioner's practice of disapproving discretionary clauses is
not preempted by the Employee Retirement Income Security Act
(ERISA), a federal law that governs certain insurance policies.