BILL ANALYSIS C.S.H.B. 1988 By: Duncan (Shapiro) Economic Development 05-24-95 Senate Committee Report (Substituted) BACKGROUND Texas closely regulates the rates, rules, and forms relating to most types of property and casualty insurance. The regulation has been described as one rate - one form. This means that every insurer uses the same rate and form for similar risks. No other state has such a restrictive type of regulation. In 1991, Texas adopted a pilot program on flexible rating with Article 5.101, Insurance Code. If no legislation is enacted before December 31, 1995, the pilot program on flexible rating will expire and the previous laws will be re-activated. PURPOSE As proposed, C.S.H.B. 1988 provides for the continuation of the flexible rating program and benchmark rating procedure; insurance rates and policy forms for certain lines of insurance; and certain administrative hearings conducted regarding insurance rates. RULEMAKING AUTHORITY It is the committee's opinion that rulemaking authority is granted to the commissioner of insurance under SECTION 28 (Sec. 3(b), Insurance Code) and SECTION 29 (Art. 21.69(g), Insurance Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Article 5.101, Insurance Code, as follows: Art. 5.101. FLEXIBLE RATING PROGRAM FOR CERTAIN INSURANCE LINES Sec. 1. New heading: PURPOSE. Provides that the program, rather than the pilot program, on flexible rating is designed, rather than created, to help stabilize the rates charged for insurance in lines of property and casualty insurance covered by Subchapters A and C, rather than A through L, of this chapter. Deletes the provision that this article expires December 31, 1995. Makes nonsubstantive and conforming changes. Sec. 2. DEFINITIONS. (1) Redefines "benchmark rate" to mean the rate set annually by the commissioner of insurance (commissioner), rather than the State Board of Insurance (board), by line, relative to which the flexibility bands and statutory rate limitations apply. (2) Makes no change. (3) Defines "flexibility band" to mean the range of rates from 30 percent below to 30 percent above, inclusive, rather than relative to, the benchmark rates set by the commissioner. Deletes the requirement that the board set the flexibility band as a percentage above and below the benchmark rate. (4)-(5) Make no changes. (6) Deletes the definition for "statutory rate limitation." Sec. 3. New heading: OPERATION OF FLEXIBLE RATING PROGRAM. (a) Provides that under the flexible rating program, rather than plan, prescribed by this article, rates used by insurers in writing property or casualty insurance for lines subject to this article are determined through the application of flexibility band to a benchmark rate and are implemented on a file and use basis. (b) Requires the commissioner to promulgate a benchmark rate for each line subject to this article after notice and hearing under Chapter 2001, Government Code (Administrative Procedure Act). Makes nonsubstantive and conforming changes. (c) Makes nonsubstantive and conforming changes. (d) Redesignates existing Subsection (c). Provides that each flexibility band, rather than initial flexibility band, is based on a benchmark rate promulgated by the commissioner. Requires the commissioner to conduct hearings to determine the benchmark rates by line on or before September 1 of each year, rather than on or before January 1, 1992. Makes nonsubstantive and conforming changes. (e) Redesignates existing Subsection (d). Provides that the rate takes effect on the date specified by the insurer, but not later than 60 days after the date of filing of the rate with the commissioner. Requires an insurer's previously filed rate to remain in effect, from and after the effective date of the benchmark rate and prior to the insurer's specified effective date, rather than filing, of a new rate, the insurer's previously filed rate to remain in effect. Makes nonsubstantive and conforming changes. (f) Provides that filed rates within the flexibility band are effective as provided in Subsection (e) of this section and are presumed to be valid and in compliance with the requirements of that subsection. Requires the commissioner, if after a hearing, the commissioner finds that the filing of an insurer under Subsection (e) of this section does not meet the requirements of this article, to issue an order that specifies how the filing fails to meet the requirements of this article and states the date on which, within a reasonable period after the order date, the insurer's filing is no longer in effect. (g) Redesignates existing Subsection (e)(1). Deletes the provisions that the rate may not include expenses disallowed under this section and that the rate takes effect on the expiration of that time period or on the date the board approves the rate. Makes conforming changes. (h) Redesignates existing Subdivision (2). Makes nonsubstantive and conforming changes. (i) Redesignates existing Subsection (f). Deletes the provision that the statutory rate limitations are plus or minus 30 percent of the benchmark rate. Deletes the provision that rates may not exceed or be lower than the statutory rate limitations unless approved by the board. Prohibits the rate filed under Subsection (g) of this section from including expenses disallowed under Subsection (o) of this section. Deletes the provision that failure to approve the filing will cause the marketplace to be inadequately served; cause a lack of availability in the line or lines that are the subject of the filing; and be confiscatory to the insurer making the filing. Provides that in approving an insurer's filing for a rate outside the flexibility band, the burden of proof is on the insurer making the filing to show that, if the rate proposed by the insurer is: (1) more than 30 percent above the benchmark rate, the rates available within the flexibility band to the relevant market are inadequate for the risks insured and that failure to approve the filing will cause a lack of availability in the relevant market; or (2) more than 30 percent below the benchmark rate, approval of the filing will not adversely affect the financial condition of the insurer. (j) Provides that an approved rate outside the flexibility band takes effect, after approval, on the date specified by the insurer, but not later than 60 days after the date of approval. (k)-(l) Make nonsubstantive and conforming changes. (m) Redesignates existing Subdivision (3). Makes nonsubstantive and conforming changes. (n) Redesignates existing Subdivision (4). Prohibits the effect on the rate charged an individual risk through surcharges and discounts under any such approved rating manual from being greater than plus or minus 15, rather than 10, percent. (o) Redesignates existing Subsection (h). Defines "disallowed expenses" for the purposes of this section, rather than Subsections (b), (c), (d), (e), (f), and (g) of this section. Makes conforming changes. (p) Redesignates existing Subsection (i). Provides that an insurer who writes insurance in any line subject to this article is required to make rate filings under Subsection (e), (g), (h), (i), (k), (l), (m), or (n) of this section. Makes nonsubstantive and conforming changes. Sec. 4. EFFECT OF ENDORSEMENTS. Makes no changes. Sec. 5. New heading: ADMINISTRATIVE PROCEDURE ACT APPLICABLE; BENCHMARK RATE HEARINGS. Redesignates existing Section 6. (a) Provides that Chapter 2001, Government Code, applies to all rate hearings conducted under this article, subject to Article 1.33B of this code and Subsections (b)-(d) of this section. (b) Provides that in a hearing on benchmark rates conducted under this article, discovery directed to any party to the proceeding concerning that party's premium, loss, expense, profit, or rate of return experience or its operations is prohibited, except to the extent that the party presents evidence, relies on, or provides to another party its own individual insurer data in the benchmark rate hearing. Provides that this subsection does not deny or restrict any party's right to produce or rely on relevant information concerning an individual insurer as evidence in a benchmark rate hearing. (c) Provides that any party, as part of a benchmark rate hearing, may present evidence regarding, and the administrative law judge shall make proposed findings concerning, any adjustments or amendments that should be made to the statistical reporting rules and statistical plans to aid in presenting a case at future benchmark rate hearings. (d) Authorizes the commissioner, if the record indicates evidence under Subsection (c) of this section, to initiate a proceeding under Article 5.96 of this code to determine and make adjustments and amendments to the rules and statistical plans as necessary to further aid in determining whether rates and rating systems in use under this article comply with the regulatory standards imposed under this article. Requires the commissioner to consider the evidence taken at the benchmark rate hearings under Subsection (c) of this section, and to address that evidence in any order or action taken as a result of the proceeding. SECTION 2. Amends Article 5.01(f), Insurance Code, to delete the provision that this subsection expires December 31, 1995. SECTION 3. Amends Article 5.01-2(b), Insurance Code, to make a conforming change. SECTION 4. Amends Article 5.03(g), Insurance Code, to make a conforming change. SECTION 5. Amends Article 5.04(c), Insurance Code, to make a conforming change. SECTION 6. Amends Article 5.09, Insurance Code, to make a conforming change. SECTION 7. Amends Article 5.11(c), Insurance Code, to make a conforming change. SECTION 8. Amends Section 1, Article 5.13-2, Insurance Code, to make a conforming change. SECTION 9. Amends Section 3(2), Article 5.13-2, Insurance Code, to redefine "insurer" to prohibit the provisions of Sections 4, 5, 6, and 7 of this article from applying to Lloyd's or reciprocals with respect to commercial property insurance. SECTION 10. Amends Section 10, Article 5.13-2, Insurance Code, as follows: Sec. 10. New heading: ADMINISTRATIVE PROCEDURE ACT APPLICABLE. Makes conforming changes. SECTION 11. Amends Article 5.14(b), Insurance Code, to make a conforming change. SECTION 12. Amends Article 5.15(h), Insurance Code, to make a conforming change. SECTION 13. Amends Article 5.25(b), Insurance Code, to make nonsubstantive and conforming changes. SECTION 14. Amends Article 5.25A(b), Insurance Code, to make a conforming change. SECTION 15. Amends Article 5.26(i), Insurance Code, to make a conforming change. SECTION 16. Amends Article 5.28(d), Insurance Code, to make a conforming change. SECTION 17. Amends Article 5.29(b), Insurance Code, to make a conforming change. SECTION 18. Amends Article 5.30(b), Insurance Code, to make a conforming change. SECTION 19. Amends Article 5.31(b), Insurance Code, to make a conforming change. SECTION 20. Amends Article 5.32(b), Insurance Code, to make a conforming change. SECTION 21. Amends Article 5.34(b), Insurance Code, to make a conforming change. SECTION 22. Amends Article 5.39(b), Insurance Code, to make a conforming change. SECTION 23. Amends Article 5.40(d), Insurance Code, to make a conforming change. SECTION 24. Amends Article 5.41(b), Insurance Code, to make a conforming change. SECTION 25. Amends Article 5.96(a-1), Insurance Code, to make nonsubstantive and conforming changes. SECTION 26. Amends Article 5.96A(d), Insurance Code, to make a conforming change. SECTION 27. Amends Article 5.97(n), Insurance Code, to make a conforming change. SECTION 28. Amends Chapter 5, Insurance Code, by adding Subchapter O, as follows: SUBCHAPTER O. RATE ROLLBACK Art. 5.131. TEMPORARY RATE ROLLBACK FOR CERTAIN LINES OF INSURANCE Sec. 1. FINDINGS. Sets forth the findings of the legislature in relation to the rates of certain lines of insurance. Sec. 2. SCOPE OF ARTICLE. (a) Provides that this article applies to any insurer that is authorized to do business in this state and that is authorized to write any of the types of coverages or lines and sublines listed in Subsection (b) of this section. (b) Sets forth the intent of the legislature in relation to certain lines and sublines of insurance. (c) Sets forth policies and coverages to which this article applies. Sec. 3. RATE ROLLBACK. (a) Requires the commissioner, on or before September 1 of each year, to hold a rulemaking hearing under Chapter 2001, Government Code, to determine the percentage of equitable across-the-board reductions in insurance rates required of insurers writing the lines and sublines of liability coverage described by Section 2(c) of this article. (b) Requires the commissioner, not later than October 1, 1995, to issue rules mandating the appropriate rate reductions to rates for the lines and sublines of liability coverage described by Section 2(c) of this article and developed without consideration of the effect of the legislation described by Section 1 of this article. (c) Authorizes the commissioner to set the percentage of the rate reduction by line and subline within any of the coverages described by Section 2(c) of this article and to set a percentage either above or below the percentages listed in Subsection (e) of this section. Requires the commissioner's order establishing the rate reductions to be based on the evidence adduced at the rulemaking hearing. Provides that it is the intent of the legislature that the rates resulting from the rate reductions imposed by this article be reasonable, adequate, not unfairly discriminatory, nonconfiscatory, and not excessive. (d) Provides that the rate reductions adopted under this section are applicable to each policy or coverage issued, issued for delivery, or renewed on or after January 1, 1996, and to each policy or coverage issued, issued for delivery, or renewed on and after the 90th day after the date of each subsequent rule adopted under Subsection (a) of this section. (e) Sets forth reductions that apply to each insurer for each affected policy or coverage issued, issued for delivery, or renewed on or after January 1, 1996, if the commissioner has not yet issued an order establishing rate reductions for a line or subline under this section or the order has not yet become final because of any reason. (f) Provides that a rate reduction imposed by a rule adopted under this section is effective under the terms of the rule without regard to any legal challenge as to the validity or implementation of the rule. (g) Requires the commissioner to consider the effect of the legislation described by Section 1 of this article in determining rates under Section 5 of Article 21.81 of this code. Sec. 4. ADMINISTRATIVE RELIEF. (a) Requires a rate filed as to a line or subline of insurance coverage affected by this article on or after January 1, 1996, and a rate filed on and after the 90th day following the effective date of a subsequent rule adopted under Section 3(a) of this article, to reflect the rate reduction imposed by Section 3 of this article. Requires the commissioner to disapprove a rate, subject to the procedures established by Section 7, Article 5.13-2, of this code if the commissioner finds that the filed rate does not reflect that reduction. (b) Provides that the commissioner is not required to disapprove a filed rate that reflects less than the full amount of the rate reduction imposed by Section 3 of this article if the commissioner, based on credible data, makes certain determinations. Sec. 5. DECLARATION OF INAPPLICABILITY TO CERTAIN LINES. Requires the commissioner, by order, to declare this article inapplicable to a line or subline of insurance otherwise subject to this article at the time the commissioner finds, based on actuarially credible data, that rates in that line or subline reflect the actual experience under the legislation described by Section 1 of this article. Sec. 6. DURATION OF REDUCTION. Sets forth the duration of each rate resulting from the reduction required under Section 3 of this article. Sec. 7. MODIFICATION. Authorizes the commissioner, by bulletin or directive, based on the evidence accumulated by the commissioner before the bulletin or directive is issued, to modify a rate reduction mandated by the commissioner under this article if a final, unappealable judgment of a court with appropriate jurisdiction stays the effect of, enjoins, or otherwise modifies or declares unconstitutional any of the legislation described by Section 1 of this article on which the commissioner based the rate reduction. Sec. 8. HEARINGS AND ORDERS. Requires a rulemaking hearing under this article to be held before the commissioner or a designee. Provides that Article 1.09-5 of this code does not apply to hearings under this article. Provides that the rulemaking procedures established by this section do not apply to any other rate promulgation proceeding. Sec. 9. PENDING RATE MATTERS. Provides that a rate filed pursuant to a commissioner's order issued before May 1, 1995, is not subject to the rate reductions required by this article before January 1, 1996. Sec. 10. RECOMMENDATIONS TO LEGISLATURE. Requires the commissioner to assemble information, conduct hearings, and take other appropriate measures to assess and evaluate changes in the marketplace resulting from the implementation of this article and to report findings and recommendations to the legislature. SECTION 29. Amends Article 21.69, Insurance Code, as follows: Art. 21.69. New heading: STATISTICAL DATA COLLECTION. (a) Authorizes the commissioner, for a line or subline of insurance, to designate or contract with a qualified organization to serve as the statistical agent for the commissioner to gather data relevant for regulatory purposes or as otherwise provided in this code. (b) Requires an organization, to qualify as a statistical agent, to demonstrate at least five years of experience in data collection, data maintenance, data quality control, accounting, and related areas. (c) Provides that the commissioner's designation or contracting with a statistical agent under this article authorizes the statistical agent to collect from the reporting insurers any fees necessary for the statistical agent to the costs of data collection from the reporting insurers for data collection services provided by the statistical agent. Requires a reporting insurer to pay the fee to the statistical agent for the data collection services provided by the statistical agent. (d) Requires a statistical agent designated or contracted with by the commissioner under this article to collect data from reporting insurers under a statistical plan promulgated by the commissioner. (e) Requires an insurer to provide all premium and loss cost data to the commissioner or the commissioner's agent designated or contracted with under this article as the commissioner or the agent requires. (f) Authorizes the statistical agent to provide aggregate premium and loss cost data to subscribers. (g) Authorizes the commissioner to adopt rules necessary to accomplish the purposes of this article. Deletes existing Article 21.69. SECTION 30. Amends Article 17.22(b), Insurance Code, to make a conforming change. SECTION 31. Requires the commissioner of insurance to conduct hearings on the benchmark rate under Section 3(d), Article 5.101, Insurance Code, to be used by insurers in calendar year 1996, no later than October 1, 1995. SECTION 32. Effective date: September 1, 1995. SECTION 33. Emergency clause.