By:  Carona, Zaffirini                                 S.B. No. 415
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to operation of the Texas Medical Liability Insurance
 1-3     Underwriting Association and to participation of nursing homes in
 1-4     that association.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6           SECTION 1.  Subdivision (6), Section 2, Article 21.49-3,
 1-7     Insurance Code, is amended to read as follows:
 1-8                 (6)  "Health care provider" means:
 1-9                       (A)  any person, partnership, professional
1-10     association, corporation, facility, or institution duly licensed or
1-11     chartered by the State of Texas to provide health care as defined
1-12     in Section 1.03(a)(2) [1.03(2)], Medical Liability and Insurance
1-13     Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
1-14     Statutes), as:
1-15                             (i)  a registered nurse, hospital, dentist,
1-16     podiatrist, pharmacist, chiropractor, or optometrist;
1-17                             (ii)  a for-profit[,] or not-for-profit
1-18     nursing home;
1-19                             (iii)  [, or] a radiation therapy center
1-20     that is independent of any other medical treatment facility and
1-21     which is licensed by the Texas Department of Health in that
1-22     agency's capacity as the Texas [State] Radiation Control Agency
1-23     pursuant to the provisions of Chapter 401, Health and Safety Code,
1-24     and which is in compliance with the regulations promulgated under
1-25     that chapter;
 2-1                             (iv)  [by the Texas State Radiation Control
 2-2     Agency,] a blood bank that is a nonprofit corporation chartered to
 2-3     operate a blood bank and which is accredited by the American
 2-4     Association of Blood Banks;
 2-5                             (v)  [,] a nonprofit corporation which is
 2-6     organized for the delivery of health care to the public and which
 2-7     is certified under Chapter 162, Occupations Code; [Article 4509a,
 2-8     Revised Civil Statutes of Texas, 1925,] or
 2-9                             (vi)  a [migrant] health center as defined
2-10     by 42 U.S.C. Section 254b [P.L. 94-63], as amended; [(42 U.S.C.
2-11     Section 254b), or a community health center as defined by P.L.
2-12     94-63, as amended (42 U.S.C. Section 254c), that is receiving
2-13     federal funds under an application approved under either Title IV,
2-14     P.L. 94-63, as amended (42 U.S.C. Section 254b), or Title V, P.L.
2-15     94-63, as amended (42 U.S.C. Section 254c),] or
2-16                       (B)  an officer, employee, or agent of an entity
2-17     listed in Paragraph (A) of this subdivision [any of them] acting in
2-18     the course and scope of that person's [his] employment.
2-19           SECTION 2.  Subdivision (1), Subsection (b), Section 4,
2-20     Article 21.49-3, Insurance Code, is amended to read as follows:
2-21                 (1)  The rates, rating plans, rating rules, rating
2-22     classification, territories, and policy forms applicable to the
2-23     insurance written by the association and statistics relating
2-24     thereto shall be subject to Subchapter B of Chapter 5 of the
2-25     Insurance Code, as amended, giving due consideration to the past
2-26     and prospective loss and expense experience for medical
 3-1     professional liability insurance within and without this state of
 3-2     all of the member companies of the association, trends in the
 3-3     frequency and severity of losses, the investment income of the
 3-4     association, and such other information as the commissioner [board]
 3-5     may require;  provided, that if any article of the above subchapter
 3-6     is in conflict with any provision of this Act, this Act shall
 3-7     prevail.  For purposes of this article, rates, rating plans, rating
 3-8     rules, rating classifications, territories, and policy forms for
 3-9     for-profit nursing homes are subject to the requirements of Article
3-10     5.15-1 of this code to the same extent as not-for-profit nursing
3-11     homes.
3-12           SECTION 3.  Section 4A, Article 21.49-3, Insurance Code, is
3-13     amended to read as follows:
3-14           Sec. 4A.  POLICYHOLDER'S STABILIZATION RESERVE FUND.
3-15     (a)  There is hereby created a policyholder's stabilization reserve
3-16     fund which shall be administered as provided herein and in the plan
3-17     of operation of the association.
3-18           (b)  Each policyholder shall pay annually into the
3-19     stabilization reserve fund a charge, the amount of which shall be
3-20     established annually by advisory directors chosen by health care
3-21     providers and physicians eligible for insurance in the association
3-22     in accordance with the plan of operation.  The charge shall be in
3-23     proportion to each premium payment due for liability insurance
3-24     through the association.  Such charge shall be separately stated in
3-25     the policy, but shall not constitute a part of premiums or be
3-26     subject to premium taxation, servicing fees, acquisition costs, or
 4-1     any other such charges.
 4-2           (c)  The [policyholder's] stabilization reserve fund shall be
 4-3     collected and administered by the association and shall be treated
 4-4     as a liability of the association along with and in the same manner
 4-5     as premium and loss reserves.  The fund shall be valued annually by
 4-6     the board of directors as of the close of the last preceding year.
 4-7           (d)  Except as provided by Subsection (e) of this section,
 4-8     collections [Collections] of the stabilization reserve fund charge
 4-9     shall continue only until such time as the net balance of the
4-10     stabilization reserve fund is not less than the projected sum of
4-11     premiums to be written in the year following valuation date.
4-12           (e)  If in any fiscal year the incurred losses and defense
4-13     and cost-containment expenses from physicians or any single
4-14     category of health care provider result in a net underwriting loss
4-15     and exceed 25 percent of the stabilization reserve fund, as valued
4-16     for that year, the commissioner may by order direct the initiation
4-17     or continuation of the stabilization reserve fund charge for
4-18     physicians or that category of health care provider until the fund
4-19     recovers the amount by which those losses and cost-containment
4-20     expenses exceed 25 percent of the fund.
4-21           (f)  The stabilization reserve fund shall be credited with
4-22     all stabilization reserve fund charges collected from policyholders
4-23     and shall be charged with any deficit from the prior year's
4-24     operation of the association.
4-25           SECTION 4.  Section 5, Article 21.49-3, Insurance Code, is
4-26     amended to read as follows:
 5-1           Sec. 5.  PARTICIPATION.  (a)  Each policyholder shall have
 5-2     contingent liability for a proportionate share of any assessment of
 5-3     policyholders made under the authority of this article.  Whenever a
 5-4     deficit, as calculated pursuant to the plan of operation, is
 5-5     sustained by the association in any one year, its directors shall
 5-6     levy an assessment on the policyholders as provided by this section
 5-7     [only upon those policyholders who held policies in force at any
 5-8     time within the two most recently completed calendar years in which
 5-9     the association was issuing policies preceding the date on which
5-10     the assessment was levied].
5-11           (b)  The directors shall determine whether the deficit
5-12     sustained by the association may be attributed solely to the
5-13     activities of physicians or of a specific category of health care
5-14     provider.  If the directors do so determine, the directors shall
5-15     levy an assessment only on policyholders who:
5-16                 (1)  are physicians or belong to that category of
5-17     health care provider; and
5-18                 (2)  held policies in force at any time within the two
5-19     most recently completed calendar years in which the association was
5-20     issuing policies preceding the date on which the assessment is
5-21     levied.
5-22           (c)  If the directors do not determine that the deficit
5-23     sustained by the association may be attributed solely to the
5-24     activities of physicians or of a specific category of health care
5-25     provider, the directors shall levy an assessment on all
5-26     policyholders who  held policies in force at any time within the
 6-1     two most recently completed calendar years in which the association
 6-2     was issuing policies preceding the date on which the assessment is
 6-3     levied.
 6-4           (d)  The aggregate amount of an [the] assessment under this
 6-5     section shall be equal to that part of the deficit not recouped
 6-6     from the stabilization reserve fund.  The maximum aggregate
 6-7     assessment per policyholder may [shall] not exceed the annual
 6-8     premium for the liability policy most recently in effect.  Subject
 6-9     to such maximum limitation, each policyholder shall be assessed as
6-10     provided by this section for that portion of the deficit reflecting
6-11     the proportion which the earned premium on the policies of such
6-12     policyholder bears to the total earned premium for all policies of
6-13     the association in the two most recently completed calendar years.
6-14           (e) [(b)]  All insurers which are members of the association
6-15     shall participate in its writings, expenses, and losses in the
6-16     proportion that the net direct premiums, as defined herein, of each
6-17     such member, excluding that portion of premiums attributable to the
6-18     operation of the association, written during the preceding calendar
6-19     year bears to the aggregate net direct premiums written in this
6-20     state by all members of the association.  Each insurer's
6-21     participation in the association shall be determined annually on
6-22     the basis of such net direct premiums written during the preceding
6-23     calendar year, as reported in the annual statements and other
6-24     reports filed by the insurer that may be required by the board.  No
6-25     member shall be obligated in any one year to reimburse the
6-26     association on account of its proportionate share in the deficit
 7-1     from operations of the association in that year in excess of one
 7-2     percent of its surplus to policyholders and the aggregate amount
 7-3     not so reimbursed shall be reallocated among the remaining members
 7-4     in accordance with the method of determining participation
 7-5     prescribed in this subdivision, after excluding from the
 7-6     computation the total net direct premiums of all members not
 7-7     sharing in such excess deficit.  In the event that the deficit from
 7-8     operations allocated to all members of the association in any
 7-9     calendar year shall exceed one percent of their respective surplus
7-10     to policyholders, the amount of such deficit shall be allocated to
7-11     each member in accordance with the method of determining
7-12     participation prescribed in this subdivision.
7-13           SECTION 5.  Sections 2, 4, and 5, Article 21.49-3, Insurance
7-14     Code, as amended by this Act, apply only to an insurance policy
7-15     delivered, issued for delivery, or renewed on or after January 1,
7-16     2002.  A policy delivered, issued for delivery, or renewed before
7-17     January 1, 2002, is governed by the law as it existed immediately
7-18     before the effective date of this Act, and that law is continued in
7-19     effect for that purpose.
7-20           SECTION 6.  This Act takes effect September 1, 2001.