77R12801 E                           
         By Eiland, Seaman                                     H.B. No. 2102
         Substitute the following for H.B. No. 2102:
         By Eiland                                         C.S.H.B. No. 2102
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the determination of premium rates for certain lines of
 1-3     insurance.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1. Section 3, Article 5.101, Insurance Code, is
 1-6     amended by amending Subsections (b), (c), (d), and (o) and by
 1-7     adding Subsection (r) to read as follows:
 1-8           (b)  The commissioner shall promulgate by rule a benchmark
 1-9     rate for each line subject to this article after notice and hearing
1-10     [under Chapter 2001, Government Code (the Administrative Procedure
1-11     Act)].  The commissioner shall set the benchmark rate to produce a
1-12     range that:
1-13                 (1)  promotes stability in that line; and
1-14                 (2)  produces rates that are just, reasonable, adequate
1-15     and not excessive for the risks to which they apply, and not
1-16     confiscatory.
1-17           (c)  In promulgating the benchmark rate, the commissioner may
1-18     give due consideration to:
1-19                 (1)  past and prospective loss experience within the
1-20     state and outside the state if the state data are not credible;
1-21                 (2)  the peculiar hazards and experience of individual
1-22     risks, past and prospective, within and outside the state;
1-23                 (3)  a reasonable margin for profit;
1-24                 (4)  expenses of operation of all insurers, allocated
 2-1     to each line of insurance in proportion to the amount the net
 2-2     direct premiums of that line bear to the aggregate of net direct
 2-3     premiums for all lines assessed under that article, and excluding
 2-4     only those [which may not include disallowed] expenses that are
 2-5     disallowed under Subsection (o) of this section;
 2-6                 (5)  the extent and nature of competition in that
 2-7     market;
 2-8                 (6)  the availability or lack of availability in that
 2-9     market;
2-10                 (7)  the level and range of rates and rate changes
2-11     among insurers;
2-12                 (8)  investment and underwriting experience of
2-13     insurers;
2-14                 (9)  reinsurance availability;
2-15                 (10)  consumer complaints;
2-16                 (11)  extent of denials and restrictions of coverage;
2-17                 (12)  the volume of cancellations and nonrenewals; and
2-18                 (13)  any other factor considered appropriate by the
2-19     commissioner.
2-20           (d)  Each flexibility band is based on a benchmark rate
2-21     promulgated by rule by the commissioner.  The commissioner shall
2-22     conduct hearings annually to determine the benchmark rates by line
2-23     [on or before September 1 of each year].  Before each hearing
2-24     conducted under this subsection, the commissioner shall request
2-25     recommendations from insurers, trade associations, the public
2-26     insurance counsel, and any other interested person or entity
2-27     regarding changes to the benchmark rates.  The recommendations must
 3-1     include any supporting actuarial analyses.  Notice of each hearing
 3-2     proposing changes to the benchmark rates must be published in the
 3-3     Texas Register. The commissioner shall receive public comment for
 3-4     at least 30 days after the notice is published.  The determination
 3-5     of the rate shall not include disallowed expenses under Subsection
 3-6     (o) of this section.  An insurer, the public insurance counsel, and
 3-7     any other interested person may present views, analyses, and
 3-8     arguments in response to the commissioner's request for
 3-9     recommendations, either before or [testimony] at the hearing, and
3-10     may file information for consideration by the commissioner.  The
3-11     public insurance counsel and any insurer, trade association, or
3-12     other interested person or entity that has submitted proposed
3-13     changes or actuarial analyses may ask questions of any person
3-14     testifying at [An advisory organization which collects ratemaking
3-15     data shall not be a party to] the hearing.  A trade association
3-16     that does not collect historical data and that does not provide
3-17     statistical plans, prospective loss costs, or supplementary rating
3-18     information to its members may, on behalf of its members that are
3-19     small or medium-sized insurers, as defined by the commissioner,
3-20     present rate making data and make recommendations to the
3-21     commissioner before or at the hearing.  There is no immunity from
3-22     antitrust liability for a trade association that presents rate
3-23     making data or makes recommendations to the commissioner [at the
3-24     hearing].  The definition of "small and medium-sized insurers"
3-25     shall be a limitation upon the scope of the presentation to be made
3-26     by a trade association, but may not limit the participation of a
3-27     trade association because its membership includes other sized
 4-1     insurers.  After the hearing, the commissioner shall adopt a rule
 4-2     promulgating the benchmark rates. An insurer shall use that
 4-3     benchmark rate and the flexibility band to develop rates used for
 4-4     the line for the year following the setting of the benchmark rate.
 4-5           (o)  For the purposes of this section, "disallowed expenses"
 4-6     include:
 4-7                 (1)  administrative expenses, not including acquisition
 4-8     expenses, not including acquisition, loss control and safety
 4-9     engineering expenses, that exceed 110 percent of the industry
4-10     median for those expenses;
4-11                 (2)  lobbying expenses;
4-12                 (3)  advertising expenses, other than advertising that
4-13     is directly related to the services or products provided by the
4-14     insurer, advertising designed and directed at loss prevention, or
4-15     advertising the promotion of organizations exempt from federal
4-16     taxation under Section 501(c)(3) of the Internal Revenue Code;
4-17                 (4)  amounts paid by an insurer as damages in a suit
4-18     against the insurer for bad faith or as fines or penalties for
4-19     violation of law;
4-20                 (5)  contributions to organizations engaged in
4-21     legislative advocacy;
4-22                 (6)  fees and penalties imposed on the insurer for
4-23     civil or criminal violations of law;
4-24                 (7)  contributions to social, religious, political, or
4-25     fraternal organizations;
4-26                 (8)  fees and assessments paid to advisory
4-27     organizations; and
 5-1                 (9)  any unreasonably incurred expenses, as determined
 5-2     by the commissioner after notice and  hearing in a proceeding
 5-3     separate from the benchmark hearing under this article.
 5-4           (r)  The commissioner may not exclude any part of the
 5-5     expenses of an individual insurer or group of affiliated insurers
 5-6     unless the expenses are specifically disallowed under Subsection
 5-7     (o) of this section.  If a disallowed expense under Subsection
 5-8     (o)(9) of this section involves an individual insurer or group of
 5-9     affiliated insurers, the commissioner must provide notice under
5-10     that subsection to each insurer or group of affiliated insurers
5-11     involved.
5-12           SECTION 2. Section 5, Article 5.101, Insurance Code, is
5-13     amended to read as follows:
5-14           Sec. 5.  APPLICABILITY OF CERTAIN GOVERNMENT CODE
5-15     REQUIREMENTS [ADMINISTRATIVE PROCEDURE ACT APPLICABLE; BENCHMARK
5-16     RATE HEARINGS]. (a)  Subject to Chapter 40 of this code, Chapter
5-17     2001, Government Code [(the Administrative Procedure Act)], applies
5-18     to all rate hearings conducted under this article, other than a
5-19     benchmark rate hearing conducted under Section 3(d) of this article
5-20     [subject to Article 1.33B of this code and Subsections (b)-(d) of
5-21     this section].
5-22           (b)  Subchapter A, Chapter 2006, Government Code, does not
5-23     apply to a benchmark rate hearing conducted under Section 3(d) of
5-24     this article. [In a hearing on benchmark rates conducted under this
5-25     article, discovery directed to any party to the proceeding
5-26     concerning that party's premium, loss, expense, profit, or rate of
5-27     return experience or its operations is prohibited, except to the
 6-1     extent that the party presents evidence, relies on, or provides to
 6-2     another party its own individual insurer data in the benchmark rate
 6-3     hearing.  This subsection does not deny or restrict any party's
 6-4     right to produce or rely on relevant information concerning an
 6-5     individual insurer as evidence in a benchmark rate hearing.]
 6-6           [(c)  As part of a benchmark rate hearing, any party may
 6-7     present evidence regarding, and the administrative law judge shall
 6-8     make proposed findings concerning, any adjustments or amendments
 6-9     that should be made to the statistical reporting rules and
6-10     statistical plans to aid in presenting a case at future benchmark
6-11     rate hearings.]
6-12           [(d)  If the record indicates evidence under Subsection (c)
6-13     of this section, the commissioner may initiate a proceeding under
6-14     Article 5.96 of this code to determine and make adjustments and
6-15     amendments to the rules and statistical plans as necessary to
6-16     further aid in determining whether rates and rating systems in use
6-17     under this article comply with the regulatory standards imposed
6-18     under this article.  The commissioner shall consider the evidence
6-19     taken at the benchmark rate hearings under Subsection (c) of this
6-20     section, and shall address that evidence in any order or action
6-21     taken as a result of the proceeding.]
6-22           SECTION 3. Article 5.101, Insurance Code, is amended by
6-23     adding Section 6 to read as follows:
6-24           Sec. 6.  JUDICIAL REVIEW. (a)  Judicial review of an order
6-25     promulgating benchmark rates is under the substantial evidence
6-26     rule.
6-27           (b)  A person aggrieved by the action of the commissioner in
 7-1     setting the benchmark rates may, not later than the 30th day after
 7-2     the date on which the commissioner adopts a final order on a
 7-3     benchmark rate, file a petition for judicial review in a district
 7-4     court in Travis County.
 7-5           SECTION 4. Section 5, Article 21.81, Insurance Code, is
 7-6     amended to read as follows:
 7-7           Sec. 5.  RATES FOR INSURANCE; HEARING. (a)  [At least
 7-8     annually, the commissioner shall conduct a hearing for the purpose
 7-9     of determining appropriate rates to be charged for insurance
7-10     provided through the association.  The association may appear as a
7-11     matter of right, shall be admitted as a party to present testimony
7-12     at the hearing, and may file information for consideration by the
7-13     commissioner.]  The commissioner shall determine and prescribe
7-14     appropriate rates to be charged for insurance provided through the
7-15     association [rates] that are just, reasonable, adequate, not
7-16     excessive, not confiscatory, and not unfairly discriminatory for
7-17     the risks to which they apply.  Rates shall be set in an amount
7-18     sufficient to carry all claims to maturity and to meet the expenses
7-19     incurred in the writing and servicing of the business.  In making a
7-20     determination, the commissioner shall consider the reports of
7-21     aggregated premiums earned and losses and expenses incurred in the
7-22     writing of motor vehicle insurance through the plan collected under
7-23     the statistical plan provided for by Subsection (b) of this
7-24     section.
7-25           (b)  The commissioner shall promulgate reasonable rules and
7-26     statistical plans to be used by each insurer in the recording and
7-27     reporting of its premium, loss, and expense experience which must
 8-1     be reported separately for business assigned to it and other data
 8-2     required by the commissioner.
 8-3           (c)  The association shall file annually with the department
 8-4     for approval by the commissioner rates to be charged for insurance
 8-5     provided through the association.  The association may not make
 8-6     such a filing more than once in any 12-month period.  Subchapter B,
 8-7     Chapter 40, of this code does not apply to:
 8-8                 (1)  a filing made under this subsection;
 8-9                 (2)  Subsections (d)-(h) of this section; or
8-10                 (3)  a department action with respect to such a filing.
8-11           (d)  Before approving, disapproving, or modifying a filing
8-12     made under Subsection (c) of this section, the commissioner shall
8-13     provide all interested persons a reasonable opportunity to:
8-14                 (1)  review the filing;
8-15                 (2)  obtain copies of the filing on payment of any
8-16     legally required copying cost; and
8-17                 (3)  submit to the commissioner written comments,
8-18     analyses, or information related to the filing.
8-19           (e)  Not later than the 45th day after the date on which the
8-20     department receives the filing required under Subsection (c) of
8-21     this section, the commissioner shall schedule a hearing at which
8-22     interested persons may present written or oral comments relating to
8-23     the filing.  A hearing under this subsection is not a contested
8-24     case hearing under Chapter 2001, Government Code.  The association,
8-25     the public insurance counsel, and any other interested person or
8-26     entity that has submitted proposed changes or actuarial analyses
8-27     may ask questions of any person testifying at the hearing.
 9-1           (f)  The department shall file with the Texas Register notice
 9-2     that a filing has been made under Subsection (c) of this section
 9-3     not later than the seventh day after the date the filing is
 9-4     received by the department. The notice must include information
 9-5     relating to:
 9-6                 (1)  the availability of the filing for public
 9-7     inspection at the department during regular business hours and the
 9-8     procedures for obtaining copies of the filing;
 9-9                 (2)  procedures for making written comments related to
9-10     the filing; and
9-11                 (3)  the time, place, and date of the hearing scheduled
9-12     under Subsection (e) of this section.
9-13           (g)  After the conclusion of the hearing, the commissioner
9-14     shall approve, disapprove, or modify the filing in writing.  If the
9-15     commissioner disapproves a filing, the commissioner shall state in
9-16     writing the reasons for the disapproval and the criteria to be met
9-17     by the association to obtain approval.  The association may file
9-18     with the commissioner, not later than the 10th day after the date
9-19     on which the association receives the commissioner's written
9-20     disapproval, an amended filing to comply with the commissioner's
9-21     comments.
9-22           (h)  Before approving or disapproving an amended filing, the
9-23     commissioner shall provide all interested persons a reasonable
9-24     opportunity to review the amended filing, obtain copies of the
9-25     amended filing on payment of any legally required copying cost, and
9-26     submit to the commissioner written comments or information related
9-27     to the amended filing in the manner provided by Subsection (d) of
 10-1    this section, and may hold a hearing not later than the 20th day
 10-2    after the date on which the department receives the amended filing
 10-3    in the manner provided by Subsection (e) of this section.  Not
 10-4    later than the 10th day after the date on which the hearing on the
 10-5    amended filing is concluded, the commissioner shall approve or
 10-6    disapprove the amended filing.  Not later than the 30th day after
 10-7    the date on which the amended filing is received by the department,
 10-8    the commissioner shall disapprove the amended filing or it is
 10-9    considered approved.  The requirements adopted under Subsections
10-10    (f) and (g) of this section apply to a hearing conducted under this
10-11    subsection.
10-12          SECTION 5.  Subchapter B, Chapter 40, Insurance Code, is
10-13    amended by adding Section 40.061 to read as follows:  
10-14          Sec. 40.061.  FLEXIBLE RATING PROGRAM.  Notwithstanding
10-15    Sections 40.051-40.060, hearings for benchmark rates for all lines
10-16    of insurance subject to Article 5.101 of this code are conducted as
10-17    provided by Section 3(d) of that article.
10-18          SECTION 6. This Act applies only to premium rates for an
10-19    insurance policy delivered, issued for delivery, or renewed on or
10-20    after January 1, 2002.  Rates for a policy delivered, issued for
10-21    delivery, or renewed before January 1, 2002, are governed by the
10-22    law as it existed immediately before the effective date of this
10-23    Act, and that law is continued in effect for that purpose.
10-24          SECTION 7. This Act takes effect September 1, 2001.