By Eiland                                             H.B. No. 3359
         Line and page numbers may not match official copy.
         Bill not drafted by TLC or Senate E&E.
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the benchmark rating system for certain lines of
 1-3     insurance.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Art. 5.101 Insurance Code is amended to read as
 1-6     follows:
 1-7           Art. 5.101, Flexible Rating Program for Certain Insurance
 1-8     Lines.
 1-9           Sec. 1.  PURPOSE.  The program on flexible rating is designed
1-10     to help stabilize the rates charged for insurance in lines of
1-11     property and casualty insurance covered by Subchapters A and C of
1-12     this chapter.  This article does not apply to:
1-13                 (1)  ocean marine insurance;
1-14                 (2)  inland marine insurance;
1-15                 (3)  fidelity, surety and guaranty bond insurance;
1-16                 (4)  errors and omissions insurance;
1-17                 (5)  directors' and officers' liability insurance;
1-18                 (6)  general liability insurance;
1-19                 (7)  commercial property insurance;
1-20                 (8)  workers' compensation insurance;
1-21                 (9)  professional liability insurance for physicians
 2-1     and health care providers as defined in Article 5.15-1 of this
 2-2     code; or
 2-3                 (10)  attorney's professional liability insurance.
 2-4           Sec. 2.  DEFINITIONS.  In this article:
 2-5                 (1)  "Benchmark rate" means the rate set annually by
 2-6     the commissioner by line, relative to which the flexibility bands
 2-7     and statutory rate limitations apply.
 2-8                 (2)  "Classification" means a generic application to
 2-9     similar risks within the same line.
2-10                 (3)  "Flexibility band" means the range of rates from
2-11     30 percent below to 30 percent above, inclusive, the benchmark
2-12     rates set by the commissioner by line, within which an insurer,
2-13     during a set period relative to a particular line, may increase or
2-14     decrease rate levels by classification without prior approval by
2-15     the commissioner.
2-16                 (4)  "Line" means each type of insurance made subject
2-17     to this subchapter, other than fidelity, surety, or guaranty bonds.
2-18                 (5)  "Rate" or "rating plan" means the charge for a
2-19     particular line for each unit of exposure.
2-20           Sec. 3.  Operation of flexible rating program.  (a)  Under
2-21     the flexible rating program prescribed by this article, rates used
2-22     by insurers in writing property or casualty insurance for lines
2-23     subject to this article are determined through the application of
2-24     flexibility bands to a benchmark rate and are implemented on a file
2-25     and use basis.
 3-1           (b)  The commissioner shall promulgate a benchmark rate for
 3-2     each line subject to this article after notice and hearing under
 3-3     Chapter 2001, Government Code (the Administrative Procedure Act).
 3-4     The commissioner shall set the benchmark rate to produce a range
 3-5     that:
 3-6                 (1)  promotes stability in that line; and
 3-7                 (2)  produces rates that are just, reasonable, adequate
 3-8     and not excessive for the risks to which they apply, and not
 3-9     confiscatory.
3-10           (c)  In promulgating the benchmark rate, the commissioner may
3-11     give due consideration to:
3-12                 (1)  past and prospective loss experience within the
3-13     state and outside the state if the state data are not credible;
3-14                 (2)  the peculiar hazards and experience of individual
3-15     risks, past and prospective, within and outside the state;
3-16                 (3)  a reasonable margin for profit;
3-17                 (4)  expenses of operation, which may not include
3-18     disallowed expenses under Subsection (o) of this section;
3-19                 (5)  the extent and nature of competition in that
3-20     market;
3-21                 (6)  the availability or lack of availability in that
3-22     market;
3-23                 (7)  the level and range of rates and rate changes
3-24     among insurers;
3-25                 (8)  investment and underwriting experience of
 4-1     insurers;
 4-2                 (9)  reinsurance availability;
 4-3                 (10)  consumer complaints;
 4-4                 (11)  extent of denials and restrictions of coverage;
 4-5                 (12)  the volume of cancellations and nonrenewals; and
 4-6                 (13)  any other factor considered appropriate by the
 4-7     commissioner.
 4-8           (d)  Each flexibility band is based on a benchmark rate
 4-9     promulgated by the commissioner.  The commissioner shall enter an
4-10     order promulgating [conduct hearing to determine] the benchmark
4-11     rates by line on or before September 1 of each year.  The
4-12     determination of the rate shall not include disallowed expenses
4-13     under Subsection (o) of this section.  An insurer, the public
4-14     insurance counsel, and any other interested person may present
4-15     testimony at the hearing and may file information for consideration
4-16     by the commissioner. An advisory organization which collects
4-17     ratemaking data shall not be a party to the hearing.  A trade
4-18     association that does not  collect historical data and that does
4-19     not provide statistical plans, prospective loss costs, or
4-20     supplementary rating information to its members may, on behalf of
4-21     its members that are small or medium-sized insurers, as defined by
4-22     the commissioner, present rate making data and make recommendations
4-23     to the commissioner at the hearing.  There is no immunity from
4-24     antitrust liability for a trade association that presents rate
4-25     making data or makes recommendations to the commissioner at the
 5-1     hearing.  The definition of "small and medium-sized insurers" shall
 5-2     be a limitation upon the scope of the presentation to be made by a
 5-3     trade association, but may not limit the participation of a trade
 5-4     association because its membership includes other sized insurers.
 5-5     An insurer shall use that benchmark rate and the flexibility band
 5-6     to develop rates used for the line for the year following the
 5-7     setting of the benchmark rate.
 5-8           (e)  An insurer may use any rate by classification within the
 5-9     flexibility band without prior approval by the commissioner.  The
5-10     rate may not include expenses disallowed under Subsection (o) of
5-11     this section.  Within 30 days of the effective date of the
5-12     benchmark rate for a particular line, each insurer which proposes
5-13     to write that line of insurance in this state during the effective
5-14     period of the benchmark rate shall file with the commissioner its
5-15     proposed rate by line, and by classification and territory under
5-16     the rating manual promulgated by the commissioner, unless the
5-17     insurer has obtained approval from the commissioner under
5-18     Subsection (l) of this section to use its own rating manual.  The
5-19     insurer shall include in the filing any statistics to support the
5-20     rates to be used by the insurer as required by rule of the
5-21     commissioner, including information necessary to evidence that the
5-22     calculation of the rate does not include disallowed expenses.
5-23     Rates proposed in filings made under this subsection must be just,
5-24     reasonable, adequate and not excessive for the risks to which they
5-25     apply.  The rate takes effect on the date specified by the insurer,
 6-1     but not later than the 60th day after the date of filing of the
 6-2     rate with the commissioner.  For the purpose of this section, the
 6-3     date the rate is received by the commissioner is the date of
 6-4     filing.  From and after the effective date of the benchmark rate
 6-5     and prior to the insurer's specified effective date of a new rate,
 6-6     the insurer's previously filed rate shall remain in effect.
 6-7     Subject to the limitations contained in Subsection (p) of this
 6-8     section, an insurer may continue its previously filed rates or make
 6-9     additional rate filings based on the previous benchmark rate for
6-10     new policies or policies renewing prior to the specified effective
6-11     date of its new rate.
6-12           (f)  Filed rates within the flexibility band are effective as
6-13     provided in Subsection (e) of this section and are presumed to be
6-14     valid and in compliance with the requirements of that subsection.
6-15     However, if, after a hearing, the commissioner finds that the
6-16     filing of an insurer under Subsection (e) of this section does not
6-17     meet the requirements of this article, the commissioner shall issue
6-18     an order that specifies how the filing fails to meet the
6-19     requirements of this article and states the date on which, within a
6-20     reasonable period after the order date, the insurer's filing is no
6-21     longer in effect.
6-22           (g)  An insurer may not use a rate outside the upper and
6-23     lower limits of the flexibility band without the prior approval of
6-24     the commissioner.  A filing made by an insurer subject to the
6-25     approval of the commissioner is considered approved by the
 7-1     commissioner unless the commissioner disapproves the filing not
 7-2     later than the 60th day after the date of the filing.  Any such
 7-3     filing must produce rates which are just, reasonable, adequate and
 7-4     not excessive for the risks to which they apply, or the
 7-5     commissioner shall disapprove the filing.  If the commissioner
 7-6     requests additional information regarding the filing, the
 7-7     commissioner shall act within 60 days after the response to that
 7-8     request.
 7-9           (h)  An insurer, the public insurance counsel, and any other
7-10     interested person may request, within 30 days of the filing, that
7-11     the commissioner hold a hearing on an insurer's prior approval
7-12     filing.  Upon such request, the commissioner shall conduct a
7-13     hearing under Chapter 2001, Government Code (the Administrative
7-14     Procedure Act), after which hearing, the commissioner shall have 60
7-15     days to disapprove the filing, or it is deemed approved.
7-16           (i)  The rate filed under Subsection (g) of this section may
7-17     not include expenses disallowed under Subsection (o) of this
7-18     section. In approving an insurer's filing for a rate outside the
7-19     flexibility band, the burden of proof is on the insurer making the
7-20     filing to show, by clear and convincing evidence, that, if the rate
7-21     proposed by the insurer is:
7-22                 (1)  more than 30 percent above the benchmark rate, the
7-23     rates available within the flexibility band to the relevant market
7-24     are inadequate for the risks insured and that failure to approve
7-25     the filing will cause a lack of availability in the relevant
 8-1     market; or
 8-2                 (2)  more than 30 percent below the benchmark rate,
 8-3     approval of the filing will not adversely affect the financial
 8-4     condition of the insurer.
 8-5           (j)  An approved rate outside the flexibility band takes
 8-6     effect, after approval, on the date specified by the insurer, but
 8-7     not later than the 60th day after the date of the approval.
 8-8           (k)  The commissioner, by rule, shall adopt a rating manual
 8-9     of classifications and territories for each line subject to this
8-10     subchapter and shall spread the benchmark rate among those
8-11     classifications and territories.  The rating manual promulgated by
8-12     the commissioner shall be used by all insurers unless they receive
8-13     approval to use their own manual under Subsection (l) of this
8-14     section.
8-15           (l)  Following written application and approval of the
8-16     commissioner, an insurer may use a rating manual relative to
8-17     classifications and territories of risks, different from that
8-18     promulgated by the commissioner, to calculate the rate used by that
8-19     insurer for an individual risk.  The calculation of the rate may
8-20     not include disallowed expenses under Subsection (o) of this
8-21     section.  The commissioner shall approve the use of only such
8-22     additions or refinements in its classification plan as will produce
8-23     subclassifications, which, when combined, will enable consideration
8-24     of the insurer's experience under both the commissioner's rating
8-25     manual and its own rating manual.  Such application shall be
 9-1     approved by the commissioner, after notice and hearing under
 9-2     Chapter 2001, Government Code (the Administrative Procedure Act in
 9-3     whole or in part, provided the commissioner finds that the
 9-4     resulting premiums will be just, adequate, reasonable, not
 9-5     excessive, and not unfairly discriminatory, taking into
 9-6     consideration the following:
 9-7                 (1)  the financial condition of the insurer;
 9-8                 (2)  the method of operation and expenses of such
 9-9     insurer;
9-10                 (3)  the actual paid and incurred loss experience of
9-11     the insurer;
9-12                 (4)  investment income of the insurer; and
9-13                 (5)  that the application meets the reasonable
9-14     conditions, limitations, and restrictions deemed necessary by the
9-15     commissioner.
9-16           (m)  In considering all matters set forth in such
9-17     application, the commissioner shall give consideration to the
9-18     composite effect of Subsections (l)(2)-(4) of this section and the
9-19     commissioner shall deny the application if the commissioner finds
9-20     that the resulting premiums would be inadequate, excessive, or
9-21     unfairly discriminatory.
9-22           (n)  The effect on the rate charged an individual risk
9-23     through surcharges and discounts under any such approved rating
9-24     manual shall not be greater than plus or minus 15 percent, as a
9-25     deviation from the insurer's filed rate within the flexibility band
 10-1    or approved rate outside the flexibility band.
 10-2          (o)  For the purposes of this section, "disallowed expenses"
 10-3    include:
 10-4                (1)  administrative expenses, not including acquisition
 10-5    expenses, not including acquisition, loss control and safety
 10-6    engineering expenses, that exceed 110 percent of the industry
 10-7    median for those expenses;
 10-8                (2)  lobbying expenses;
 10-9                (3)  advertising expenses, other than advertising that
10-10    is directly related  to the services or products provided by the
10-11    insurer, advertising designed and directed at loss prevention, or
10-12    advertising the promotion of organizations exempt from federal
10-13    taxation under Section 501(c)(3)  of the Internal Revenue Code;
10-14                (4)  amounts paid by an insurer as damages in a suit
10-15    against the insurer for bad faith or as fines or penalties for
10-16    violation of law;
10-17                (5)  contributions to organizations engaged in
10-18    legislative advocacy;
10-19                (6)  fees and penalties imposed on the insurer for
10-20    civil or criminal violations of law;
10-21                (7)  contributions to social, religious, political, or
10-22    fraternal organizations;
10-23                (8)  fees and assessments paid to advisory
10-24    organizations; and
10-25                (9)  any unreasonably incurred expenses, as determined
 11-1    by the commissioner.
 11-2          (p)  An insurer may change a rate adopted under Subsection
 11-3    (e) of this section on a file and use basis not more than twice
 11-4    during a 12-month period.  Additional changes require the prior
 11-5    approval of the commissioner.
 11-6          (q)  An insurer who writes insurance in any line subject to
 11-7    this article is required to make rate filings under Subsection (e),
 11-8    (g), (h), (i), (k), (l), (m), or (n) of this section, using its own
 11-9    historical premium and loss data, as well as its own data for
11-10    expenses and for profit and contingency factors.  The commissioner
11-11    may require an audit of the insurer's historical premium and loss
11-12    data.  The insurer may separately supplement its own historical
11-13    premium and loss data with historical premium and loss data as
11-14    necessary.  The commissioner may, by rule, establish requirements
11-15    for reporting historical premium and loss data under this
11-16    subsection.
11-17          Sec. 4.  Effect of endorsements.  An insurer that provides
11-18    additional or reduced coverage through an endorsement to a policy
11-19    subject to this article may assess an additional or reduced charge
11-20    for coverage under the endorsement only with the prior approval of
11-21    the commissioner.
11-22          Sec. 5.  Administrative Procedure Act applicable; benchmark
11-23    rate  hearings.  (a)  Subchapter B of Chapter 2001, Government Code
11-24    (the Administrative Procedure Act), applies to all rate hearings
11-25    conducted under this article[, subject to Article 1.33B of this
 12-1    code and Subsections (b)-(d) of this section.]
 12-2          [(b)  In a hearing on benchmark rates conducted under this
 12-3    article, discovery directed to any party to the proceeding
 12-4    concerning that party's premium, loss, expense, profit, or rate of
 12-5    return experience or its operations is prohibited, except to the
 12-6    extent that the party presents evidence, relies on, or provides to
 12-7    another party its own individual insurer data in the benchmark rate
 12-8    hearing.  This subsection does not deny or restrict any party's
 12-9    right to produce or rely on relevant information concerning an
12-10    individual insurer as evidence in a benchmark rate hearing.]
12-11          [(c)  As part of a benchmark rate hearing, any party may
12-12    present evidence regarding, and the administrative law judge shall
12-13    make proposed findings concerning, any adjustments or amendments
12-14    that should be made to the statistical reporting rules and
12-15    statistical plans to aid in presenting a case at future benchmark
12-16    rate hearings.]
12-17          [(d)  If the record indicates evidence under Subsection (c)
12-18    of this section, the commissioner may initiate a proceeding under
12-19    Article 5.96 of this code to determine and make adjustments and
12-20    amendments to the rules and statistical plans as necessary to
12-21    further aid in determining whether rates and rating systems in use
12-22    under this article comply with the regulatory standards imposed
12-23    under this article.  The commissioner shall consider the evidence
12-24    taken at the benchmark rate hearings under Subsection (c) of this
12-25    section, and shall address that evidence in any order or action
 13-1    taken as a result of the proceeding.]
 13-2          SECTION 2.  This Act takes effect September 1, 1999.
 13-3          SECTION 3.  The importance of this legislation and the
 13-4    crowded condition of the calendars in both houses create an
 13-5    emergency and an imperative public necessity that the
 13-6    constitutional rule requiring bills to be read on three several
 13-7    days in each house be suspended, and this rule is hereby suspended.