HBA-TYH S.B. 1153 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 1153 By: Bivins Insurance 4/26/1999 Engrossed BACKGROUND AND PURPOSE Presently, 30 fraternal benefit societies (societies) are licensed in Texas, including six whose main offices are located in the state. More than $16 billion of life insurance issued by fraternal benefit societies, held by the state's more than 575,000 fraternal members, is currently in force in Texas. Fraternal benefit societies are different than commercial insurers in several respects, including a society's nonprofit status, its organization for the benefit of its members, its branch or lodge system, its representative form of government, and its provisions for the payment of death, sickness, disability, or other benefits. As a nonprofit organization, a society qualifies for tax-exempt status under the Internal Revenue Code (26 I.R.C. Section 501), if the society establishes that it operates under a lodge system and provides for the payment of benefits. Most fraternal benefit societies in the United States are members of the National Fraternal Congress of America (NFCA), the national trade association for fraternal benefit societies. NFCA provides support to its members, oversees the development of initiatives and programs to benefit the system, develops policy recommendations on legislative and regulatory issues, and monitors all state and federal bills for activity affecting member-societies. NFCA recently promulgated the Model Fraternal Code to reflect changes in the insurance industry and federal tax law. Forty states have enacted the Model Fraternal Code. The law regulating fraternal benefit societies in Texas has not been substantially revised since 1951. Only minor amendments since that date have been enacted. S.B. 1153 sets forth provisions regulating fraternal benefit societies. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the commissioner of insurance in SECTION 10 (Article 10.15, Insurance Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Article 10.01(b), Insurance Code, to redefine "control" as that term is defined by Section 2(d), rather than 2(c), Article 21.49-1 (Insurance Holding Company System Regulatory Act), Insurance Code. SECTION 2. Amends Article 10.03, Insurance Code, to redefine the representative form of government for a fraternal benefit society (society). Under the new definition, a society has a representative form of government if it has a supreme governing body constituted as an assembly or as a board; if the officers of a society are elected by the supreme governing body or by the board of directors; if only benefit members are eligible to serve as members of the supreme governing body, the board of directors, or an intermediate assembly of a society; if only benefit members may vote on the management of insurance affairs of a society; if a voting member of a society has only one vote; and if a voting member may not cast a vote by proxy. Deletes the existing definition. SECTION 3. Amends Chapter 10, Insurance Code, by adding Article 10.03A, as follows: ARTICLE 10.03A. ASSEMBLY AS FORM OF SUPREME GOVERNING BODY; BOARD OF DIRECTORS. (a) Provides that the supreme governing body is an "assembly" if it is composed of delegates elected directly by the members or their representatives and of other delegates as prescribed by the society's laws. (b) Authorizes a society to provide for election of delegates by mail. (c) Provides that the elected delegates must constitute a majority of the assembly in number and be entitled to the greater of two-thirds of the votes in the assembly or the number of votes required to amend a society's laws. (d) Requires an assembly to meet at least once every four years and elect a board of directors to conduct the business of the society between meetings of the assembly. (e) Authorizes a vacancy on the board of directors that occurs between elections to be filled as prescribed in a society's laws. SECTION 4. Amends Chapter 10, Insurance Code, by adding Article 10.03B, as follows: ARTICLE 10.03B. BOARD AS FORM OF SUPREME GOVERNING BODY. (a) Provides that a supreme governing body is a "board" if it is composed of delegates elected either directly by the members or their representatives and of other persons as prescribed by a society's laws. (b) Authorizes a society to provide for election of the board by mail. (c) Provides that the persons elected to the board must constitute a majority of the board in number and have at least the number of votes required to amend the society's laws, other than those laws, if any, that must be amended by direct vote of the members. (d) Prohibits the term of the board member from exceeding four years. (e) Authorizes a vacancy on the board of directors that occurs between elections to be filled as prescribed in a society's laws. Provides that a person filling the unexpired term of an elected board member is considered to be an elected member. (f) Requires a board to meet at least once each year to conduct the business of a society. SECTION 5. Amends Chapter 10, Insurance Code, by adding Article 10.03-1, as follows: ARTICLE 10.03-1. DEFINITIONS. Defines "benefit contract," "benefit member," "certificate," "laws," "lodge," "premiums," and "rules." SECTION 6. Amends Article 10.05, Insurance Code, as follows: (a) Creates this subsection from existing text. Deletes the prohibition that a monument or tombstone dedicated to the memory of a deceased member of a society cannot exceed $300 if the society provides for its payment. Includes the provision that a society is authorized to pay for any other benefit that may be provided by a life, accident, or health insurance company, provided that the benefit is offered in compliance with Chapter 3 (Life, Health, and Accident Insurance), Insurance Code, and consistent with Chapter 10. Makes conforming and nonsubstantive changes. (b) Adds this subsection to require a society to specify in its laws or rules those persons to whom a certificate may be issued or who may be covered by benefits. Requires a society to make the provision of those benefits consistent with the provision of benefits to members and their beneficiaries. (c) Adds this subsection to authorize a society to appoint an agent licensed by the Texas Department of Insurance (department) under Article 21.07-1 (Licensing of Agents), V.T.I.C., to sell benefits listed under Subsection (a), Article 10.05, to society members. Deletes existing Subdivision (2) which authorizes benefits to be provided on the lives of members, or upon application of a member, on the lives of the member's family, including the member, the member's spouse and minor children, in the same or separate certificates. SECTION 7. Amends Article 10.07(a), Insurance Code, to make a conforming change. SECTION 8. Amends Article 10.12, Insurance Code, as follows: ARTICLE 10.12. New title: QUALIFICATIONS FOR MEMBERSHIP; GRIEVANCE PROCEDURES. (a) Requires a society to specify in its laws or rules the eligibility standards for each membership class, provided that if benefits are provided on the lives of children, the minimum age for adult membership is between age 15 and age 21; the process for admission for each membership class; and the rights and privileges of each membership class, provided that only benefit members may vote on the management of the insurance affairs of a society. (b) Authorizes a society to admit social members. Prohibits a social member from voting in the management of the insurance affairs of a society. (c) Provides that membership rights in a society are personal to a member. Prohibits a member from assigning membership rights. (d) Authorizes a society to provide in its laws or rules for grievance or complaint procedures for members. (e) Deletes existing Article 10.12, except for the provision that nothing in this chapter shall be construed to affect or apply to societies which admit to membership only persons engaged in one or more hazardous occupations, in the same or similar lines of business. SECTION 9. Amends Chapter 10, Insurance Code, by adding Article 10.12-1, as follows: ARTICLE 10.12-1. BENEFICIARIES. (a) Authorizes an owner of a benefit contract to change the beneficiary at any time in accordance with the laws or rules of the society unless the owner waives this right by specifically requesting in writing that the beneficiary designation be irrevocable. Authorizes a society, through its laws or rules, to limit the scope of beneficiary designations. Requires a society to provide that a person whose designation as beneficiary is revocable may not have or obtain a vested interest in the proceeds, in conformity with the benefit contract. (b) Provides that if, at the death of a deceased insurer, a lawful beneficiary to whom the proceeds of the benefit contract are payable does not exist under the benefit contract, the amount of a benefit under a benefit contract shall be paid to a personal representative of a deceased insured or, if the owner of a certificate is a person other than the deceased insured, to the owner of the certificate. (c) Articulates the inapplicability of Subsection (b) to the extent funeral benefits may be paid under the benefit contract. SECTION 10. Amends Article 10.15, Insurance Code, as follows: (a) Creates this subsection from existing text and makes a nonsubstantive change. (b) Adds this subsection to prohibit a certificate from being delivered or issued for delivery in this state unless the form of the certificate has been filed with the department under Article 3.42 (Policy Form Approval). Provides that a life, accident, health, or disability insurance certificate or annuity certificate issued by a society must meet the requirements applicable to similar policies issued by an insurer in this state that are not inconsistent with this chapter as determined by rule of the commissioner of insurance (commissioner). (c) Adds this subsection to require a society to include in the terms of a certificate a grace period of one month for payment of premiums. (d) Adds this subsection to provide that each certificate must state the amount of premiums that are payable under the certificate. (e) Adds this subsection to provide that, if the laws of a society provide for expulsion or suspension of a member, a certificate must provide that a member who is expelled or suspended may maintain the certificate in force by continuing payment of the required premium, unless the expulsion or suspension is for nonpayment of a premium, or occurs within the contestable period of the benefit contract and is for material misrepresentation in the application for membership or insurance. (f) Adds this subsection to authorize a life insurance benefit contract issued on the life of a person who is younger than the society's minimum age for adult membership to provide for transfer of control or ownership to the insured at an age specified in the certificate. Authorizes a society to require approval of an application for membership in order to effect the transfer. Authorizes a society to provide in all other respects for the regulation, government, and control of certificates and rights, obligations, and liabilities incident and connected to the certificate. Provides that ownership rights under the certificate before a transfer must be specified in the certificate. (g) Adds this subsection to authorize a society to specify the terms and conditions for the assignment of a life insurance benefit contract. SECTION 11. Amends Article 10.18, Insurance Code, by adding Subsection (c), to authorize a society to establish and operate one or more separate accounts and issue benefit contracts on a variable basis. Authorizes a society, in order to comply with applicable federal or state law or rules, to issue contracts on a variable basis to which Articles 10.15 and 10.30(e) do not apply; and to adopt special procedures for the conduct of the business and affairs of a separate account and provide special voting and other rights for a person having beneficial interests in a separate account, including special procedures and rights relating to investment policy, investment advisory services, selection of certified public accountants, and selection of a committee to manage the business and affairs of the account. SECTION 12. Amends Article 10.19, Insurance Code, as follows: (a) An entity qualifies as a society if it files with the Texas Department of Insurance (department), rather than with the State Board of Insurance, certified articles of incorporation or association. Adds fraternal and patriotic purposes to the list of permissible purposes that are authorized to be set forth in the articles of incorporation or association for a society. Authorizes the permissible purposes to be carried out directly by a society or indirectly through subsidiary corporations or affiliated organizations. Makes nonsubstantive changes. (b) Specifies that the amount of the bond required to be filed with the commissioner, rather than with the State Board of Insurance, is between $300,000 and $1,500,000, rather than $5,000, as required by the commissioner. Provides that the sureties of the bond are approved by the commissioner, rather than by the State Board of Insurance. Makes conforming changes. (c) Creates this subsection from existing text. Replaces references to the State Board of Insurance with the department. Increases from $25,000 to $150,000 the aggregate amount of payments collected by a society from its members before the society can incur any liability, issue a certificate, or pay a benefit. Increases from $1,000 to $2,000 the minimum amount of 500 death benefit certificates that a society must secure before it can issue a benefit certificate or pay any death or disability benefits. Makes conforming changes. (d)-(h) Creates this subsections from existing text and makes conforming changes. SECTION 13. Amends Article 10.26, Insurance Code, as follows: ARTICLE 10.26. New title: NO PERSONAL LIABILITY; INDEMNIFICATION OR REIMBURSEMENT. (a) Creates this subsection from existing text and makes nonsubstantive changes. (b) Adds this subsection to authorizes a society to indemnify and reimburse a person for expenses reasonably incurred by, and liabilities imposed on, that person in connection with or arising out of a legal proceeding in which the person is involved, or in connection with or arising out of a threat of a proceeding against that person, because that person is or was a director, officer, employee, or agent of the society or a firm, corporation, or organization with which the person served in any capacity at the request of a society. (c) Adds this subsection to prohibit a person, except as provided by Subsection (d), from being indemnified or reimbursed in relation to a matter in a legal proceeding in which the person is finally adjudged guilty of breach of a duty as a director, officer, employee, or agent of a society; or an agreement that settles a matter concerning a breach of duty or the threat of the proceeding. (d) Adds this subsection to authorize a society to indemnify or reimburse a person in relation to a matter described by Subsection (c) only if the supreme governing body, the board of directors, or a court of competent jurisdiction determines that the person acted in good faith for a purpose the person reasonably believed to be in or not opposed to the best interests of the society, and that in a criminal action or proceeding, the person had no reasonable cause to believe that the person's conduct was unlawful. (e) Adds this subsection to provide that a determination by a supreme governing board or board of directors under Subsection (d) must be made by majority vote of a quorum consisting of persons who were not parties to the action, suit, or other proceeding under review. (f) Adds this subsection to provide that the termination of a legal proceeding by judgment, order, settlement, or conviction or on a plea of no contest does not create a conclusive presumption that a person does not meet the standard of conduct required in order to justify indemnification or reimbursement. (g) Adds this subsection to provide that the right of indemnification and reimbursement is not exclusive of other rights to which a person may be entitled as a matter of law and inures to the benefit of the person's devisees, legatees, heirs, and estate. (h) Adds this subsection to authorize a society to purchase and maintain insurance on behalf of a person who is or was a director, officer, employee, or agent of the society or who is or was serving at the request of the society as a director, officer, employee, or agent of another firm, corporation, or organization against a liability asserted against that person or incurred by that person in any capacity or arising out of that person's status as a director, officer, employee, or agent of the society or the other firm, corporation, or organization. Authorizes a society to purchase and maintain insurance under this subsection regardless of whether the society has the power to indemnify or reimburse the person with respect to the covered liability. (i) Adds this subsection to provide that a director, officer, employee, member, or volunteer of a society serving without compensation is not personally liable for damages resulting from an act or omission in the exercise of judgment or discretion in connection with the duties of that person for the society, unless the act or omission involved wilful or wanton misconduct. Sets forth that this subsection does not limit a society's direct or indirect liability SECTION 14. Amends Article 10.30, Insurance Code, as follows: (a)-(d) Creates subsections from existing text and makes conforming and nonsubstantive changes. (e) Changes the maximum rate of interest that can be charged to a member to make up shortfalls in collections to pay benefits and maintain the fund from five per cent annually to the rate specified for certificate loans under the certificate. Requires the assessment to be levied against an owner of a certificate who is not a member. Makes a nonsubstantive change. (f) Creates this subsection from existing text and makes a conforming change. SECTION 15. Amends Chapter 10, Insurance Code, by adding Article 10.31, as follows: ARTICLE 10.31. NONFORFEITURE BENEFITS, CASH SURRENDER VALUES, CERTIFICATE LOANS, AND OTHER OPTIONS. (a) Sets forth that for a certificate issued before January 1, 2001, the value of the paid-up nonforfeiture benefit and the amount of a cash surrender value, loan, or other option granted under the certificate must comply with the law applicable to the certificate immediately before that date. (b) Provides that for a certificate issued on or after January 1, 2000, the value of the paidup nonforfeiture benefit and the amount of a cash surrender value, loan, or other option granted under the certificate is computed as provided under the provisions of Articles 3.44a (Standard Non-forfeiture Law for Life Insurance) and 3.44b (Standard Non-forfeiture Law for Individual Deferred Annuities) applicable to life insurance companies issuing policies containing similar benefits and under the applicable tables established under those articles. SECTION 16. Amends Article 10.33(a), Insurance Code, to include Article 1.15A among the articles to which each domestic society is subject. SECTION 17. Amends Chapter 10, Insurance Code, by adding Article 10.37-3, to prohibit a person from soliciting or procuring insurance contracts for a society unless the person is licensed as an agent under Article 21.07-1, V.T.I.C. Provides that an agent, representative, or member of a fraternal benefit society who devotes less than 50 percent of the person's time to the solicitation and procurement of insurance contracts for that society is exempt from the requirements of this article. Provides that a person is presumed for a calendar year to have devoted at least 50 percent of the person's time to the solicitation or procurement of insurance contracts if, in the preceding year, the person solicited or procured on behalf of a society the specified insurance contracts. SECTION 18. Amends Section 1(b), Article 21.07-1, V.T.C.S., to redefine "agent." SECTION 19. Amends Section 5(a), Article 21.07-1, V.T.C.S., to prohibit a written examination to be required of an applicant for the renewal of a license issued under Article 21.07, rather than by the department pursuant to Article 21.07, Insurance Code, rather than Texas Insurance Code, 1951, or an applicant for a license under this section who is authorized to solicit or procure insurance for a fraternal benefit society on September 1, 1999, provided that the applicant solicits or does not solicit insurance at certain times, in certain amounts, on behalf of certain entities, or from certain persons. Makes conforming and nonsubstantive changes. SECTION 20. Amends Section 16, Article 21.07-1, V.T.C.S., to make conforming changes. SECTION 21. Repealer: Articles 10.05-1 (Provisions for Life Insurance Benefits) and 10.05-2 (Accident and Health Insurance Certificates), Insurance Code. SECTION 22. Effective date: January 1, 2000, except for Section 21 which is effective on January 1, 2001. Makes application of Article 10.15 prospective for a certificate that is delivered, issued, or renewed on or after January 1, 2001. SECTION 23. Emergency clause.