Bill Text: CA AB1072 | 2015-2016 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Insurance: firefighters' or police officers' benefit and relief associations.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2015-10-05 - Chaptered by Secretary of State - Chapter 503, Statutes of 2015. [AB1072 Detail]

Download: California-2015-AB1072-Introduced.html

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BILL NUMBER: AB 1072	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Daly

                        FEBRUARY 27, 2015

   An act to repeal and add Chapter 10A (commencing with Section
11400) of Part 2 of Division 2 of the Insurance Code, relating to
insurance.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 1072, as introduced, Daly. Insurance: firefighters or police
officers' benefit and relief associations.
   (1) Existing law generally provides for the regulation of insurers
by the Department of Insurance pursuant to laws set forth in the
Insurance Code. Existing law authorizes the Insurance Commissioner to
make certain examinations, investigations, and prosecutions and,
upon making a determination of the existence of certain conduct,
conditions, or grounds, to issue orders reasonably necessary to
correct, eliminate, or remedy the conduct, conditions, or grounds.
Existing law also prohibits insurers from engaging in unfair or
deceptive acts or practices, including advertising insurance that an
insurer will not sell. A violation of that prohibition is a
misdemeanor.
   Existing law exempts from the requirements set forth in the
Insurance Code firemen's, policemen's, and peace officers' benefit
and relief associations that comply with specified criteria,
including, among other things, a requirement that the membership
consist solely of peace officers, members of police or fire
departments, and emergency medical personnel employed by fire
departments, as specified. Existing law prohibits an association from
operating or doing business in the state without a certificate of
authority, and imposes a filing fee of $590 for the application for
that certificate.
   This bill would repeal those provisions and would enact new
provisions governing those entities. Among other things, the bill
would revise requirements governing membership, by authorizing these
associations to consist of a majority of the members described above.

   The bill would also impose new reporting, reserve, and disclosure
requirements upon certain associations that offer long-term benefits,
as defined. The bill would authorize the commissioner to examine the
operations, affairs, transactions, conduct, and financial condition
of an association, and to carry out other enforcement duties with
respect to these associations. The bill would require these
associations to pay a filing fee of $590 for the application for the
certificate, and an annual fee of $350, thereby imposing taxes, and
would require these associations to pay $347 for filing financial
information. The bill would also make these associations subject to
the prohibitions against unfair or deceptive acts or practices. By
expanding the scope of a crime, the bill would impose a
state-mandated local program.
   (2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   (3) This bill would include a change in state statute that would
result in a taxpayer paying a higher tax within the meaning of
Section 3 of Article XIII A of the California Constitution, and thus
would require for passage the approval of 2/3 of the membership of
each house of the Legislature.
   Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Chapter 10A (commencing with Section 11400) of Part 2
of Division 2 of the Insurance Code is repealed.
  SEC. 2.  Chapter 10A (commencing with Section 11400) is added to
Part 2 of Division 2 of the Insurance Code, to read:
      CHAPTER 10A.  FIREFIGHTERS', POLICE OFFICERS', OR PEACE
OFFICERS' BENEFIT AND RELIEF ASSOCIATIONS



      Article 1.  Definitions and Scope


   11400.  (a) For purposes of this chapter, the following
definitions apply:
   (1) "ERISA" refers to the Employee Retirement Income Security Act
of 1974 (Public Law 93-406).
   (2) "Long-term benefits" means scheduled member benefits that are
eligible to be paid for a period exceeding one year in duration.
These benefits include, without limitation, any benefit providing
coverage for loss of income as a result of disability, as described
in Section 799.01, or for long-term care insurance, as defined in
Section 10231.2, or any similar coverage or benefit providing for
payments which may last for a period longer than one year.
   (b) Firefighters', police officers', or peace officers' benefit
and relief associations now existing, or which may be formed on and
after January 1, 2016, for the purpose of aiding their members or
dependents of their members in case of sickness, accident, distress,
or death, shall be subject to the provisions of this chapter.
   (c) An association that offers benefits, and that operates in, and
accepts members as described in Section 11403 only from a single
government entity, shall comply with this article, but is not subject
to Article 2 (commencing with Section 11408). If an association
operates strictly in accordance with this article, it shall not be
subject to any other provision of this code, nor to any law of this
state relating to insurance, whether now existing or hereafter
enacted, except as expressly provided in this chapter.
   (d) (1) An association that either offers long-term benefits, or
operates in and accepts members as described in Section 11403 from
more than one government entity, or that does both, shall comply with
this chapter, except that the association may receive support from
bona fide employee organizations which represent a majority of 50
percent of the membership plus one member of the association's
members in negotiations with their employers.
   (2) An association described in paragraph (1) shall also comply
with Article 2 (commencing with Section 11408), except as otherwise
provided in paragraph (3).
   (3) An association that arranges at all times to have all
long-term benefits provided completely and continuously by an insurer
admitted in this state for the class of benefits offered shall not
be subject to Article 2 (commencing with Section 11408).
   (e) The commissioner may take regulatory action pursuant to any
remedy specified in this code against any association which fails to
comply with the applicable provisions of this chapter.
   (f) The commissioner may adopt reasonable rules and regulations
for the implementation and administration of this chapter.
   (g) This chapter shall not be construed in a manner that conflicts
with ERISA. Associations governed by ERISA, as amended, shall also
comply with this chapter, except to the extent that the association
reasonably believes that compliance with this chapter would conflict
or interfere with or unduly burden the association's obligation to
comply with ERISA.
   11401.  An association shall not operate or do business in this
state without a certificate of authority. The commissioner shall
issue a certificate of authority to an association unless he or she
determines, after examination, that it does not comply with the
applicable provisions of this chapter. The filing fee for the
application for the certificate of authority shall be five hundred
ninety dollars ($590). An association shall apply for a certificate
no later than 18 months after its establishment or the effective date
of this chapter, whichever is later. An association shall be
permitted to operate or do business in this state during the first 18
months of its establishment and while its application for a
certificate of authority is pending, provided the association
complies in good faith with this chapter.
   11402.  The association may be incorporated or unincorporated,
but, if incorporated, it shall neither issue nor be authorized to
issue shares of stock.
   11403.  The membership of an association shall consist solely of
the following or any combination thereof:
   (a) (1) A majority consisting of at least 50 percent of the
membership plus one member of the association's members of police
departments of municipal or public corporations or districts.
   (2) Other associations that are each comprised of a majority
consisting of at least 50 percent of the membership plus one member
of police departments of municipal or public corporations or
districts that meet the eligibility criteria to participate in an
association and that satisfy the criteria to participate in an
association that intends to comply with the requirements of this
chapter and has been admitted to participate by the association.
   (b) (1) A majority consisting of at least 50 percent of the
membership plus one member of the association's members of fire
departments of municipal or public corporations or districts.
   (2) Other associations that are each comprised of a majority
consisting of at least 50 percent of the membership plus one member
of the association's members of fire departments of municipal or
public corporations or districts and that satisfy the criteria to
participate in an association that intends to comply with the
requirements of this chapter and has been admitted to participate by
the association.
   (c) (1) A majority consisting of at least 50 percent of the
membership plus one member of the association's peace or law
enforcement officers who are regular and salaried officers or
employees of the state or of a single county or other political
subdivision or public or municipal corporation.
   (2) Other associations that are each comprised of a majority
consisting of at least 50 percent of the membership plus one member
of the peace or law enforcement officers who are regular and salaried
officers or employees of the state or of a single county or other
political subdivision or public or municipal corporation and that
satisfy the criteria to participate in an association that intends to
comply with the requirements of this chapter and has been admitted
to participate by the association.
   (d) (1) A majority consisting of at least 50 percent of the
membership plus one member of the association's persons who are
emergency medical services personnel and employed by a fire
department of a city, county, or district.
   (2) Other associations that are each comprised of a majority
consisting of at least 50 percent of the membership plus one member
of the peace or law enforcement officers who are emergency medical
services personnel and employed by a fire department of a city,
county, or district and that satisfy the criteria to participate in
an association that intends to comply with the requirements of this
chapter and has been admitted to participate by the association.
   (e) A majority consisting of at least 50 percent of the membership
plus one member of the association's persons who at the time of
becoming members of the association were qualified pursuant to
subdivision (a), (b), (c), or (d).
   11404.  The association shall not pay or promise or agree to pay,
either directly or indirectly, any consideration of any nature for
the solicitation or procuring of members or applications for
membership.
   11405.  The membership of the association who are eligible to vote
shall elect the trustees or directors, or the governing body of the
association, by whatever name their office is known or designated.
   11406.  Moneys or property directly or indirectly contributed to
the association by its members shall not be paid out as benefits to
any persons other than its members, their dependents, or
beneficiaries nominated in writing by the members or as provided by a
written plan document governing the payment of that benefit.
   11407.  The association shall be supported mainly by contributions
from its members, whether in the form of fees, dues, assessments, or
otherwise, and by donations made to it from time to time and from
any investment earnings on those contributions.

      Article 2.  Benefit and Relief Associations Providing Long-Term
Benefits or Comprised of Multiple Government Subdivisions: Reserve
Requirements


   11408.  An association that is subject to this article shall do
all of the following:
   (a) Operate in accordance with sound actuarial principles, and be
able to meet its obligation to provide the benefits that it promises
to its members.
   (b) Establish and maintain appropriate loss and loss adjustment
reserves determined by sound actuarial principles as provided in
Section 11410 to adequately fund the present value of expected future
payments provided that the reserve on all policies to which the
method or basis applied is not less in the aggregate than the
required reserves as determined in Section 11409 or as determined by
a qualified actuary that satisfies the requirements of Section
10489.15 and is based on the standards adopted by the Actuarial
Standards Board.
   (c) Maintain a contingency reserve of not less than 20 percent of
the greater of the past 12 months' premium or the expected annual
premium for the next 12 months.
   (d) Hold all reserves and other funds for the payment and
administration of benefits provided pursuant to this chapter in
trust, to be used for the exclusive purpose for which they were
intended, which may include necessary and reasonable administrative
costs.
   11409.  (a) Reserves required by this article shall be invested as
prescribed in this subdivision and subdivision (b). An association
shall maintain at least 25 percent of the contingency reserve
required by subdivision (d) of Section 11408 in investments specified
in Article 3 (commencing with Section 1170) of Chapter 2 of Part 2
of Division 1 and in Section 1192.5.
   (b) The balance of the assets of the association in an amount
equal to the reserves may be invested in assets permissible for
investment by multiple employer welfare arrangements pursuant to
subdivision (b) of Section 742.245.
   (c)  The commissioner may, after a hearing, by written order,
require the disposal of any investment made pursuant to subdivision
(b) if the association has failed to maintain cash or liquid assets
sufficient to meet its claims and any other contractual obligations.
   11410.  (a) Each association that is subject to this article shall
file with the commissioner, no later than the last day of the
11-month period after the end of each calendar year, or the last day
of the 11-month period after the end of each fiscal year not on a
calendar year basis, or within 30 days of the filing of the
association's annual return with the United States Department of
Labor, whichever is earlier, financial statements audited by a
certified public accountant. Furthermore, no later than May 1 of
every third calendar year or the first day of the fifth month after
the end of each third fiscal year not on a calendar year basis,
beginning January 1, 2014, an actuarial opinion shall be rendered by
a qualified actuary that satisfies the requirements of Section
10489.15. The opinion shall be based on standards adopted from time
to time by the Actuarial Standards Board and on any additional
standards that the commissioner may by regulation prescribe. For the
purposes of this section, "qualified actuary" means a member in good
standing of the American Academy of Actuaries who meets the
requirements set forth in regulations of the commissioner.
   (b) Each association that is subject to this article shall provide
to its members a summary annual report within the meaning of ERISA
detailing the association's year-end financial condition. The report
shall be provided to members in the time and manner required by
ERISA. The association shall also provide a copy of the report to the
commissioner.
   11411.  The commissioner or any persons designated by the
commissioner shall have the power to examine the operations, affairs,
transactions, conduct, and financial condition of an association,
and for that purpose shall have access to all books, records, and
documents that relate to the business of the association that is
regulated by this chapter during the normal and regular business
hours of the association, and may examine under oath its trustees,
officers, agents, and employees in relation to the operations,
affairs, transactions, conduct, and condition of the association. If,
after a duly noticed hearing with the association during which the
association is given a full and fair opportunity to address the
written issues or concerns raised by the commissioner following his
or her examination of the association's operations, affairs,
transactions, conduct, and financial condition of the association,
the commissioner determines that the association's operations,
affairs, transactions, conduct, or financial condition do not comply
with requirements of this chapter, the commissioner may apply any
remedies authorized by this code. Examinations will be conducted at
the expense of the department.
   11412.  (a) Upon reasonable request of the commissioner, and at
reasonable intervals as prescribed by him or her, any association
that reasonably appears to the commissioner to require immediate
regulatory attention based on written evidence or other information
shall provide to the commissioner supplemental accounting, financial,
and actuarial information. The commissioner shall provide all
written evidence or other information that forms the basis of the
commissioner's request to an association at the time the request is
made. The commissioner may request that an association select and
retain an independent certified public accountant, a certified public
accountant corporation, an actuarial corporation, or an independent
actuary satisfactory to the commissioner, if the association has not
already retained experts of this type who meet the then-current
regulatory standards of the actuarial society. The commissioner, at
the expense of the association, may select or retain an independent
certified public accountant, a certified public accountant
corporation, an actuarial corporation, or an independent actuary, if
the association does not within a reasonable time make the selection
as requested by the commissioner.
   (b) The provisions of Sections 925.1 to 925.4, inclusive, shall
apply to all proceedings under this section.
   11413.  Books, records, and documents pertaining to the business
of an association that is subject to this article shall be maintained
either by the association or by its administrator if any, or both,
for a period of five years after the end of the year when the
transaction evidenced thereby ends. "Administrator," as used in this
section, has the same meaning as that contained in Section 1002(16)
(A) of Title 29 of the United States Code.
   11414.  An association that is subject to this article shall not
avoid the applicability of this article by making statements in any
contract for benefits, or by any other means, to the effect that
payment of benefits to any member when eligible for benefits based on
the date of injury (and provided the member has satisfied the
association's reasonable claims procedure) is contingent upon the
availability of assets, moneys, or other financial resources
sufficient to make the payment. This article does not provide for the
vesting of any benefit that is not already in pay status and does
not affect an association's right to amend or terminate a plan in
whole or in part.
   11415.  (a) All contracts that are not regulated by the department
for benefits, and certificates evidencing coverage thereunder, shall
include the following disclosure, in capital letters and in a
minimum of 12-point font:

   THE ASSOCIATION DOES NOT PARTICIPATE IN ANY OF THE INSURANCE
GUARANTEE FUNDS CREATED BY CALIFORNIA LAW. THEREFORE, THESE FUNDS
WILL NOT PAY YOUR CLAIMS OR PROTECT YOUR BENEFITS IF THE ASSOCIATION
BECOMES INSOLVENT AND IS UNABLE TO MAKE PAYMENTS AS PROMISED.
   THE ASSOCIATION IS NOT REGULATED BY THE STATE OF CALIFORNIA TO THE
SAME EXTENT AS INSURERS THAT PARTICIPATE IN ANY OF THE INSURANCE
GUARANTEE FUNDS CREATED BY CALIFORNIA LAW, AND ARE LICENSED UNDER
OTHER PROVISIONS OF THE CALIFORNIA INSURANCE CODE.

   (b) An association shall, upon written request from any member,
provide to that member a copy of the contract for benefits,
certificate evidencing coverage, or other plan document that
describes the benefits being provided to that member, within 30 days
of the request.
   (c) Members shall be given notice of any material benefit plan
amendment within the time and in the manner required for Summary
Material Modifications under ERISA.
   (d) If an association maintains an Internet Web site, the
association shall provide an electronic link within that Internet Web
site where both members and prospective members can see the most
current benefit plan documents and the most recent certified audited
financial statements that the association is required to file with
the United States Department of Labor, Internal Revenue Service, or
the Franchise Tax Board.
   11416.  (a) An association that elects to cease operation in this
state shall be governed by and comply with the provisions of Sections
1070 to 1076, inclusive.
   (b) Notwithstanding subdivision (a), if an association is a
tax-exempt voluntary employee benefit association (VEDA), it shall
cease operations in accordance with the rules applicable to VEDA's
and ERISA plans.
   11417.  An association shall owe and pay the following annual
fees, in addition to any other remuneration required by law:
   (a) An annual fee of three hundred fifty dollars ($350) in
advance, that shall be due on each March 1, and shall be delinquent
on and after April 1.
   (b) An annual fee of three hundred forty-seven dollars ($347) for
filing of financial information, due when the information is filed
pursuant to Section 11410.
   11418.  The commissioner may exercise stop order power over an
association that is subject to this article, pursuant to Sections
1065.1 to 1065.7, inclusive.
   11419.  (a) An association shall continue to provide long-term
benefits to any individual or entity that is no longer a member but
became entitled to benefits prior to the end of membership, as if
that individual or entity remained a member, provided the member
satisfied the association's reasonable claims procedure.
   (b) Benefits may be limited to the duration of the benefit period,
if any, or to payment of the maximum benefits, and may be subject to
any policy waiting period, and all other applicable provisions of
the policy consistent with this section, including any reasonable
claims procedure.
   (c) An association may stop providing benefits to an individual or
entity specified in subdivision (a) upon receipt of written
confirmation from a successor association or admitted insurer that
the individual or entity will begin receiving those benefits without
lapse. Notwithstanding the foregoing, an association may reduce or
coordinate the member's benefit with the successor association's plan
or insurer's policy if the association has a reasonable belief that
the member is receiving or is eligible for benefits under the
successor plan or insurance policy.
   (d) Notwithstanding any other provision of this chapter, any
individual or entity that is no longer a member of the association,
but, while still a member, paid all funds or contributions necessary
to be entitled to paid-up, long-term benefits, shall be entitled to
receive benefits as if that individual or entity remained a member,
unless the obligation to pay those benefits is assumed by a successor
association or admitted insurer.
   11419.5.  An association that is subject to this article is
subject to the provisions of Sections 790 to 790.09, inclusive.
   11419.6.  (a) (1) Any individual or entity aggrieved by an action
taken by an association regarding payment of benefits, or entitlement
to benefits, or eligibility to participate in a plan sponsored by an
association, may file a complaint or submit an inquiry to the
commissioner pursuant to the applicable provisions of Sections
12921.1 to 12921.4, inclusive.
   (2) Notwithstanding paragraph (1), for an association whose plan
provides benefits that are subject to this chapter that are also
subject to ERISA, an individual or entity may not file a complaint or
submit an inquiry regarding the payment of those benefits, or
entitlement to benefits, or eligibility to participate in a plan
sponsored by an association, to the commissioner until the individual
or entity has exhausted the association's internal claims and
appeals procedure.
   (b) An individual or entity may file a complaint or submit an
inquiry to the commissioner regarding an association's compliance
with Section 11401, 11402, 11403, 11404, 11405, 11406, 11407, 11408,
11409, 11410, or 11415 pursuant to the applicable provisions of
Sections 12921.1 to 12921.4, inclusive.
   11419.7.  If, upon sufficient complaint or inquiry as provided in
subdivision (a) or (b) of Section 11419.6, the commissioner has good
cause to believe that an association has violated any of the
provisions of this chapter, the commissioner may hold a public
hearing in connection with those violations. This hearing may be in
accordance with the administrative adjudication provisions of the
Administrative Procedure Act (Chapter 4.5 (commencing with Section
11400) of, and Chapter 5 (commencing with Section 11500) of, Part 1
of Division 3 of Title 2 of the Government Code), and the
commissioner shall have all the powers granted pursuant to these
provisions. For any complaint or inquiry as provided in subdivision
(a) of Section 11419.6 regarding the payment of benefits, or
entitlement to benefits, the commissioner shall not have the power to
direct the payment of any benefit to a member unless the terms of
the plan governing the benefit expressly allows for that payment.
   11419.8.  If, after a hearing pursuant to Section 11419.7
regarding a complaint or inquiry as provided in Section 11419.6 and
the administrative adjudication provisions of the Administrative
Procedure Act (Chapter 4.5 (commencing with Section 11400) of, and
Chapter 5 (commencing with Section 11500) of, Part 1 of Division 3 of
Title 2 of the Government Code), the commissioner finds that an
association has violated the provisions of this chapter, the
commissioner may, in addition to other penalties and remedies
provided in this code, suspend or revoke, in whole or in part, the
certificate of authority of any association granted pursuant to
Section 11401.
  SEC. 3.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.