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By:  Taylor                                                       H.B. No. 3202


A BILL TO BE ENTITLED
AN ACT
relating to rates for professional liability insurance for defined Physicians, Hospitals, and Health Care Providers. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Subchapter O, Chapter 5, Insurance Code, is amended by adding Article 5.134 to read as follows: Art. 5.134. PROFESSIONAL LIABILITY INSURANCE RATES FOR INSURANCE COVERING PHYSICIANS, HOSPITALS AND HEALTH CARE PROVIDERS Sec. 1. FINDINGS. The Legislature finds that: (1) the premium cost of professional liability insurance for Physicians, Hospitals, and Health Care Providers has been a significant factor in the reduced availability of health care services in this state; (2) legislation adopted by the regular session of the 78th Legislature places caps on damages for liability of Physicians, Hospitals and Health Care Providers which caps are projected to have the effect of significantly reducing the cost of claims covered by professional liability insurance policies, thus reducing the premiums for professional liability insurance; (3) professional liability claims made under professional liability insurance policies are claims for which actual, quantifiable loss is not fully known for several years after the claims arise, thus the actual, quantifiable savings produced by caps on damages for liability of Physicians, Hospitals and Health Care Providers cannot begin to be fully known for at least two to three years after those caps are imposed; (4) in order to provide immediate premium relief to Physicians, Hospitals, and other Health Care Providers, rates for professional liability insurance delivered, issued for delivery or renewed on or after the effective date of caps on damages for liability must immediately begin to take into consideration Cap Savings, but due to lack of initial actual data reflecting the effect of these caps on such rates, although actuarially determined, may not produce rates for premiums that will, in all cases, reflect the ultimate, actual quantifiable losses under professional liability insurance policies in the future; (5) in conjunction with placing the caps on damages for liability recovery and adjusting premium rates, it is necessary to put in place a mechanism to assure that, should initial rates of premiums incorporating adjustments for Cap Savings exceed amounts necessary to cover actual losses under professional liability insurance, the policyholders will receive a refund of premium reflecting any cost savings in an orderly manner; (6) the benefits and savings from reducing insurance costs for professional liability claims that may result from legislation placing monetary caps on damages for professional liability of Physicians, Hospitals and Health Care Providers will have a significant impact on making health care services available to Texas citizens, will assure that the health of Texas citizens is protected, will protect public health interests of the state and will assure that the providers of health care services can devote their full time and efforts to healing the sick and injured; and (7) legislative action in the public interest and within the police power of the state is required to address the cost savings resulting from the laws providing caps on damages adopted by the regular session of the 78th Legislature in order to pass the benefits of the Cap Savings on to insured Physicians, Hospitals, and Health care providers of this state. Sec. 2. In this Article, the following terms have the following meanings: (1) "Cap Savings" means the monetary savings realized or projected to be realized in rates for premiums charged for Professional Liability Insurance resulting from the imposition of monetary caps on damages for liability of Physicians, Hospitals and Health Care Providers by the regular session of the 78th Legislature. (2) "Escrow Account" means an account established by an Insurer for the purpose of depositing and maintaining any disputed percentage of Cap Savings plus investment income, as provided in Section 7. (3) "Health Care Provider" has the meaning assigned by Article 5.15-1, Section 2(2) of this code. (4) "Hospital" has the meaning assigned by Article 5.15-1, Section 2(3) of this code. (5) "Insurer" means any person or entity authorized to engage in the business of insurance in this state that delivers, issues for delivery or renews professional liability insurance for physicians, hospitals and/or health care providers in this state including: (a) a Lloyd's plan; (b) a reciprocal or interinsurance exchange; and (c) the joint underwriting association established under Article 21.49-3 of this code. (6) "Physician" has the meaning assigned by Article 5.15-1, Section 2(1) of this code. (7) "Policyholder Premium Refund" means the amount of premium refund and interest determined under Section 8 to be owed to a Physician, Hospital or Health Care Provider under a Professional Liability Insurance Policy. (8) "Professional Liability Insurance" means Professional Liability Insurance delivered, issued for delivery or renewed by an Insurer to a Physician, Hospital or Health Care Provider on or after January 1, 2004. (9) "Department" means the Texas Department of Insurance. Sec. 3. APPLICATION OF ARTICLE. This article applies to Professional Liability Insurance. Sec. 4. ENTITLEMENT TO CAP SAVINGS. Each Physician, Hospital and/or Health Care Provider who pays a premium for a Professional Liability Insurance Policy which is ultimately determined under Section 8 to exceed the premium that would be charged by taking into consideration actual Cap Savings at the time of distribution is entitled to a Policyholder Premium Refund from the Insurer who wrote the policy in an amount equivalent to the difference in the premium originally charged and the premium that would have been charged if calculated on actual Cap Savings determined under Section 8. Sec. 5. RATE FILINGS. (a) Not later than the 30th day after the date on which this article takes effect, each Insurer that plans to deliver, issue for delivery or renew Professional Liability Insurance in this state on or after January 1, 2004, shall file with the Department new rate filings for that Professional Liability Insurance which incorporates and clearly identifies the actuarially determined Cap Savings that are projected to result in the rates to be used to calculate premiums for Professional Liability Insurance. (b) Except as otherwise specifically provided in this article, rate filing made under this section shall be made in accordance with and subject to Article 5.15-1, Section 4 of this code. (c) In setting rates under this article, an Insurer, in considering past and prospective loss experience, shall not consider such experience in a manner that will diminish, minimize or ignore the effect which Cap Savings will have on reducing rates of premiums for Professional Liability Insurance. (d) Any Professional Liability Insurance rate filings made by an Insurer subsequent to the initial filing required by Subsection (a) shall be made in accordance with this article. Sec. 6. DEPARTMENT AUTHORITY AND REVIEW. (a) On receipt of a rate filing from an Insurer, the Department shall review the filing in accordance with this article. (b) If the Department determines that the Insurer has correctly projected the potential effect of the Cap Savings in its rates, the Department shall notify the Insurer in writing that the Insurer has met the requirements of this article as to Cap Savings and the Insurer may proceed to write Professional Liability Insurance in accordance with that filing. (c) If after completing final review of a rate filing, the Department believes that all or part of the Cap Savings reflected in the rate filing do not reflect a correct percentage reduction, the Department shall notify the Insurer in writing that the Department believes that all or part of the rate filing does not accurately reflect the reasonable projections of Cap Savinigs and state the reasons for that position. (d) If the Department sends notice to the Insurer under Subsection (c), the Insurer may either make necessary adjustments to its rate filing to bring the rates into the percentage range for Cap Savings determined by the Department, may create an Escrow Account as defined in Section 7 of this article and use the filed rates or may appeal the Department's decision. (e) An appeal of the Department's decision under Subsection (d), on issuance of an order by the Commissioner denying the disputed portion of the rate filing, is a contested case under Chapter 2001, Government Code. Only that portion of a rate filing that is in dispute under this article may be appealed under this section. The State Office of Administrative Hearings shall take all necessary steps to expedite a hearing and decision under this subsection. Sec. 7. ESCROW ACCOUNT. (a) An Insurer may satisfy the Department's objections to Cap Savings in the letter under Section 6(c) and implement rates in its rate filing by establishing and maintaining an Escrow Account separate from other funds of the Insurer. The Insurer may not use any funds in the account for any purpose other than for investment until such funds are distributed in accordance with Section 8. (b) The Insurer shall control and invest funds in the Escrow Account in accordance with this article and in accordance with laws governing the Insurer and company policies and procedures to the extent that those laws, policies and procedures are not in conflict with this article. (c) An Insurer shall deposit in the Escrow Account the percentage of premium on a Professional Liability Insurance policy as earned which constitutes the difference between premium charged by the Insurer under its rate filing for the Professional Liability Insurance policy and the premium that would be charged by the Insurer if using rates calculated using Cap Savings as projected by the Department. All funds in the Escrow Account must be maintained as unencumbered funds and used for no other purpose. (d) In addition to reflecting the funds being maintained in the Escrow Account on annual and quarterly financial statements and other required filings with the Department, the Insurer shall file with the Senior Associate Commissioner of the Property and Casualty Program at the Department an annual report relating to the Escrow Account, which sets out the amounts of premium collected and amounts of earned premium, on policies covered by the Escrow Account, amounts deposited in the Escrow Account, formulas used to determine amounts of deposits, interest earned on amounts deposited in the Escrow Account, claims and loss information under the policies covered by the Escrow Account and any other information that the Department, may require to be filed under this section. The report shall be submitted in the form and in the format required by the Department and shall be filed not later than January 31, 2004, and on January 31, in each succeeding year until all money in the Escrow Account is distributed. If a rate filing takes effect on a date different from January 1, the report under this subsection shall be filed not later than the last day of the 13th month following the date on which the rate filing took effect and on that date for each subsequent year. (e) An Escrow Account created by an Insurer under this article shall be used only for deposit of funds relating to the specific rate filing which neccessitated the creation of such account. If the Insurer makes a subsequent rate filing for Professional Liability Insurance and the Insurer and the Department do not agree to the Cap Savings percentage for that subsequent rate filing and the Insurer decides to use an Escrow Account to resolve issues with the Department regarding premium rates, a separate Escrow Account must be established and maintained for the disputed Cap Savings in accordance with this article. Sec. 8. POLICYHOLDER PREMIUM REFUND. (a) On approval of the Commissioner of Insurance, not earlier than two years after a rate filing takes effect and not later than three years after such date, the Insurer shall determine the actual Cap Savings based on data available at that time and make Policyholder Premium Refunds as indicated. (b) A distribution of Cap Savings shall be based on an actuarial calculation of the actual Cap Savings that have resulted under the Professional Liability Insurance policies delivered, issued for delivery or renewed under the rate filing. (c) If the actuarial calculation of actual Cap Savings when factored into the rates reflects that the rates used to calculate the original premium for the Professional Liability Insurance policies were in excess of the amount that would produce rates that reflect the actual Cap Savings for those policies based on current data, information and actual losses, the Insurer shall pay to each Physician, Hospital or Health Care Provider who is entitled to a refund, a Policyholder Premium Refund. Any Policyholder Premium Refund under this subsection shall be made not later than 30 days after the date on shich the Commissioner approves the amount of distribution or not later than 30 days after the 60-day period for Department review and Commissioner approval expires under this section, whichever shall first occur. (c) If the amount to be distributed as a Policyholder Premium Refund to Providers, Hospitals and/or Health Care Providers is more than has been maintained in an Escrow Account less interest, the Insurer shall pay any additional amount necessary to fully fund the Policyholder Premium Refund. However, if the amount to be distributed to Physicians, Hospitals and/or Health Care Providers is less than the total amount in an Escrow Account, the remaining amount in the Escrow Account is considered earned premium of the Insurer and may be distributed from the Escrow Account to the Insurer and used and expended as other earned premium of the Insurer. (d) In making distributions under this section, each Physician, Hospital and/or Health Care Provider is entitled to receive an amount equal to any interest earned on the amount of the Policyholder Premium Refund. (e) Subject to the time limitations stated in Subsection (a), when an Insurer has sufficient experience data available to make an actuarial determination of actual Cap Savings for Professional Liability Insurance, the Insurer shall have an actuarial determination of the Cap Savings made and shall file with the Department its calculation of Cap Savings, its determination of appropriate Policyholder Premium Refunds and supporting information as may be required by the Department. If the Commissioner approves this filing or if the Department fails to take action on this filing within 60 days from the date the filing is made with the Department, the Insurer may proceed to make distributions in accordance with the distribution filing. If the Department believes the distributions or part of the distributions proposed in the distribution filing do not correctly reflect Cap Savings for purposes of distribution, the Department shall notify the Insurer in writing of the changes that the Department considers necessary to establish the amount of distribution and shall provide any supporting calculations or other information requested by the Insurer in support of such position. If the Commissioner does not act on a rate distribution filing within 60 days from the date of the filing, the filing is deemed approved. (f) If the Department issues a written notice to the Insurer that the distribution filing does not correctly reflect the actual Cap Savings for purposes of distribution, the Insurer may amend its distribution filing to reflect the Department's determinations or determination the parties agree to be correct. If the Insurer does not amend the filing, the Commissioner may issue an order denying the filing. If the Commissioner denies the filing, the Insurer may appeal the Commissioner's determination. (g) An appeal of the Commissioner's decision under Subsection (f) is a contested case under Chapter 2001, Government Code. Only that portion of a distribution filing that is in dispute under this section may be appealed under this section. The State office of Administrative Hearings shall take all necessary steps to expedite a hearing and decision under this subsection. (h) If the Department determines that only a part of the distributions proposed by a distribution filing do not reflect in the distribution filing actual Cap Savings, the Commissioner shall approve the distributions that reflect actual Cap Savings and the Insurer shall make those approved distributions in accordance with the filing and this section. Sec. 9. EFFECT OF ARTICLE ON OTHER LAW. (a) The provisions of this article authorize the Commissioner of Insurance and the Department to approve or disapprove rates and rate filings only to the extent necessary to assure that proper recognition of Cap Savings are incorporated in filed rates and does not otherwise give the Commissioner or the Department the power to prescribe uniform or absolute rates or to prevent filing of different rates for risks in a given classification or modified rates for individual risks made in accordance with rating plans so long as those different or modified rates take into account reasonable projections of Cap Savings. Sec. 10. RULES AND FORMATS. (a) The Commissioner of Insurance may adopt necessary rules to carry out the provisions of this article. (b) Except for financial information required to be incorporated in regulatory annual and quarterly financial statements, any information required to be filed with the Department by an Insurer under this article other than the regular rate filing is privileged and confidential and is excepted from disclosure pursuant to Section 552.138, Government Code. Sec. 11. REPORT TO LEGISLATURE. Not later than December 31, of each year, the Department shall submit a report to each house of the Legislature regarding the operation of the program under this article. SECTION 2. Subchapter C, Government Code, is amended by adding Section 552.138 to read as follows: Section 552.138. EXCEPTION: CERTAIN CAP SAVINGS INFORMATION FILED WITH THE TEXAS DEPARTMENT OF INSURANCE. (a) Information is excepted from the requirements of Section 552.021 if it is information that is filed with the Texas Department of Insurance under Article 5.134, Insurance Code other than information specifically excepted in Article 5.134, Section 9(b), Insurance Code. SECTION 3. Article 5.134, Insurance Code and Section 552.138, Government Code, expire on January 1, 2008. SECTION 4. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provide by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2003.