Senate Bill sb2192c1

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    Florida Senate - 2002                           CS for SB 2192

    By the Committee on Banking and Insurance; and Senator
    Sanderson




    311-2189-02

  1                      A bill to be entitled

  2         An act relating to solvency of insurers and

  3         health maintenance organizations; amending s.

  4         624.404, F.S.; revising a definition; amending

  5         s. 624.80, F.S.; revising a definition;

  6         amending s. 624.81, F.S.; specifying authority

  7         of the Department of Insurance relating to

  8         certain notice requirements; authorizing the

  9         department to adopt certain rules; amending s.

10         624.84, F.S.; specifying that administrative

11         review of certain orders does not operate as an

12         automatic stay of such orders; amending s.

13         625.041, F.S.; revising the liabilities that a

14         workers' compensation insurer must include on

15         its financial statements; amending s. 627.481,

16         F.S.; revising the requirements for minimum

17         assets, reserves, and investments for entities

18         authorized to enter into donor annuity

19         agreements; amending s. 641.26, F.S.; revising

20         certain annual report requirements; amending s.

21         641.35, F.S.; specifying inclusion of certain

22         losses and claims under liabilities of a health

23         maintenance organization under certain

24         circumstances; providing an exception;

25         providing for the investment of funds of a

26         health maintenance organization in excess of

27         certain reserves and surplus under certain

28         circumstances; providing a limitation; amending

29         s. 641.365, F.S.; revising limitations on

30         certain dividend payments or distributions to

31         stockholders by a health maintenance

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    Florida Senate - 2002                           CS for SB 2192
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  1         organization; specifying criteria for making

  2         payments, declaring dividends, or making

  3         distributions; specifying criteria for

  4         department approval of certain dividends or

  5         distributions; amending s. 641.19, F.S.;

  6         defining the term "health care risk contract";

  7         providing an effective date.

  8

  9  Be It Enacted by the Legislature of the State of Florida:

10

11         Section 1.  Paragraph (b) of subsection (4) of section

12  624.404, Florida Statutes, is amended to read:

13         624.404  General eligibility of insurers for

14  certificate of authority.--To qualify for and hold authority

15  to transact insurance in this state, an insurer must be

16  otherwise in compliance with this code and with its charter

17  powers and must be an incorporated stock insurer, an

18  incorporated mutual insurer, or a reciprocal insurer, of the

19  same general type as may be formed as a domestic insurer under

20  this code; except that:

21         (4)

22         (b)  A "fronting company" is an authorized insurer

23  which by reinsurance or otherwise generally transfers more

24  than 50 percent to one unauthorized insurer which does not

25  meet the requirements of s. 624.610(3)(a), (b), or (c) is not

26  an approved reinsurer, or more than 75 percent to two or more

27  unauthorized insurers which do not meet the requirements of s.

28  624.610(3)(a), (b), or (c) are not approved reinsurers, of the

29  entire risk of loss on all of the insurance written by it in

30  this state, or on one or more lines of insurance, on all of

31  the business produced through one or more agents or agencies,

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    Florida Senate - 2002                           CS for SB 2192
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  1  or on all of the business from a designated geographical

  2  territory, without obtaining the prior approval of the

  3  department.

  4         Section 2.  Subsection (2) of section 624.80, Florida

  5  Statutes, is amended to read:

  6         624.80  Definitions.--As used in this part:

  7         (2)  "Unsound condition" means that the department has

  8  determined that one or more any of the following conditions

  9  exist with respect to an insurer:

10         (a)  The insurer's required surplus, capital, or

11  capital stock is impaired to an extent prohibited by law;

12         (b)  The insurer continues to write new business when

13  it has not maintained the required surplus or capital; or

14         (c)  The insurer attempts to dissolve or liquidate

15  without first having made provisions, satisfactory to the

16  department, for liabilities arising from insurance policies

17  issued by the insurer; or

18         (d)  The insurer meets one or more of the grounds in s.

19  631.051 for the appointment of the department as receiver.

20         Section 3.  Subsections (1) and (6) of section 624.81,

21  Florida Statutes, are amended, and subsection (10) is added to

22  that section, to read:

23         624.81  Notice to comply with written requirements of

24  department; noncompliance.--

25         (1)  If the department determines that the conditions

26  set forth in subsection (2) exist, the department shall issue

27  an order placing notify the insurer in administrative

28  supervision writing of its determination, setting forth the

29  reasons giving rise to the determination, and specifying that

30  the department is applying and effectuating the provisions of

31  this part.

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    Florida Senate - 2002                           CS for SB 2192
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  1         (6)  If the department and the insurer are unable to

  2  agree on the provisions of the plan, the department may

  3  require the insurer to take such corrective action as may be

  4  reasonably necessary to remove the causes and conditions

  5  giving rise to the need for administrative supervision proceed

  6  under applicable provisions of this code other than the

  7  provisions of this part.

  8         (10)  The department may adopt rules to define

  9  standards of hazardous financial condition and corrective

10  action similar to that indicated in the National Association

11  of Insurance Commissioners' 1997 "Model Regulation to Define

12  Standards and Commissioner's Authority for Companies Deemed to

13  Be in Hazardous Financial Condition," which are necessary to

14  implement the provisions of this part.

15         Section 4.  Section 624.84, Florida Statutes, is

16  amended to read:

17         624.84  Review and stay of action.--Review under s.

18  120.57 of an order placing an insurer in administrative

19  supervision does not operate as an automatic stay of the

20  order. During the period of supervision, the insurer may

21  contest an action taken or proposed to be taken by the

22  supervisor, specifying the manner wherein the action

23  complained of would not result in improving the condition of

24  the insurer. Such a, and the request shall not stay the action

25  specified pending reconsideration of the action by the

26  department. If upon reconsideration the action of the

27  department is upheld, the stay shall be lifted.  Denial of the

28  insurer's request upon reconsideration entitles the insurer to

29  request a proceeding under ss. 120.569 and 120.57. Such a

30  proceeding shall not operate as a stay of the action.

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    Florida Senate - 2002                           CS for SB 2192
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  1         Section 5.  Effective retroactively to January 1, 2002,

  2  subsection (5) is added to section 625.041, Florida Statutes,

  3  to read:

  4         625.041  Liabilities, in general.--In any determination

  5  of the financial condition of an insurer, liabilities to be

  6  charged against its assets shall include:

  7         (5)  A workers' compensation insurer shall include as

  8  liabilities on their financial statements only Special

  9  Disability Trust Fund annual assessments that the insurer has

10  actually received and such assessments that the insurer has

11  been notified in writing are or will be due and payable.

12         Section 6.  Subsection (2) of section 627.481, Florida

13  Statutes, is amended to read:

14         627.481  Requirements for certain annuity agreements.--

15         (2)(a)  Every such domestic corporation or such

16  domestic or foreign trust shall have and maintain admitted

17  assets at least equal to the sum of the reserves on its

18  outstanding annuity agreements, calculated in accordance with

19  the United States Internal Revenue Code as set forth in s.

20  220.03(1)(n), and a surplus of 10 25 percent of such reserves,

21  calculated using:.

22         1.a.  The present value of future guaranteed benefits

23  for individual annuities that have either commenced paying

24  benefits or have fixed a future date of the first benefit

25  payment.

26         b.  The commissioner's annuity reserve method, as set

27  forth in s. 625.121(7)(c), for individual deferred annuities

28  that have not fixed a date for the first benefit payment.

29         2.  The mortality tables used to value individual

30  annuities, as defined in s. 625.121(5).

31         a.  For annuities issued prior to July 1, 1998:

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    Florida Senate - 2002                           CS for SB 2192
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  1         (I)  The mortality tables described in s.

  2  625.121(5)(h), for individual annuities;

  3         (II)  At the option of the corporation or trust, the

  4  1983 Individual Annuity Mortality Table; or

  5         (III)  At the option of the corporation or trust, the

  6  2000 Individual Annuity Mortality Table for annuities issued

  7  between January 1, 1998, and June 30, 1998, inclusive.

  8         b.  For annuities issued on or after July 1, 1998:

  9         (I)  The mortality tables set forth in s.

10  625.121(5)(i)3.;

11         (II)  Any other mortality tables required to be used by

12  insurers in accordance with s. 625.121; or

13         (III)  At the option of the corporation or trust, any

14  other mortality tables authorized to be used by insurers in

15  accordance with s. 625.121.

16         3.  An interest rate not greater than the maximum

17  interest rate permitted for the valuation of individual

18  annuities issued during the same calendar year as the

19  charitable gift annuity for individual annuities as set forth

20  in s. 625.121(6)(b)-(f).

21         a.  The maximum statutory valuation interest rates for

22  single-premium immediate annuities for 1992 may be used for

23  annuities issued in 1992 or any prior year. The maximum

24  statutory valuation interest rates for single-premium

25  immediate annuities issued in 1992 through 2001 are as

26  follows:

27

28  Year of Issue              Single Premium Immediate

29                              Annuity Interest Rate

30       1992                        7.75 percent

31       1993                        7.00 percent

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    Florida Senate - 2002                           CS for SB 2192
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  1       1994                        6.50 percent

  2       1995                        7.25 percent

  3       1996                        6.75 percent

  4       1997                        6.75 percent

  5       1998                        6.25 percent

  6       1999                        6.25 percent

  7       2000                        7.00 percent

  8       2001                        6.75 percent

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10         b.  For 2002 and subsequent years, until an interest

11  rate for a specified year can be determined in accordance with

12  s. 625.121(6), the prior year's rate shall be used unless the

13  department requires use of a lower rate.

14         (b)  In determining the reserves of any such

15  corporation or trust, a deduction shall be made for all or any

16  portion of an annuity risk which is reinsured by a life

17  insurance company authorized to do business in this state.

18         (c)1.  The assets of such corporation or trust in an

19  amount at least equal to the sum of such reserves and surplus

20  shall be invested only in mutual funds or investments

21  securities permitted under part II of chapter 625 for the

22  investment of the reserves of authorized life insurance

23  companies.

24         2.  For purposes of this section, the provisions of s.

25  625.305(2)(a) shall not apply. In lieu thereof, the fair

26  market value of investments made by such corporation or trust

27  in stock authorized by s. 625.324 may not exceed 50 percent of

28  such corporation's or trust's required reserves and surplus.

29  The fair market value in stock of any one corporation or

30  mutual fund may not exceed 10 percent of such corporation's or

31  trust's required reserves and surplus. All other provisions of

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    Florida Senate - 2002                           CS for SB 2192
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  1  s. 625.305 shall apply. ; and Such assets shall be segregated

  2  as separate and distinct funds, independent of all other funds

  3  of such corporation or trust, and shall not be applied for the

  4  payment of the debts and obligations of the corporation or

  5  trust or for any purpose other than the annuity benefits

  6  specified in this section.

  7         Section 7.  Paragraph (f) of subsection (1) and

  8  subsections (3) and (8) of section 641.26, Florida Statutes,

  9  are amended to read:

10         641.26  Annual report.--

11         (1)  Every health maintenance organization shall,

12  annually within 3 months after the end of its fiscal year, or

13  within an extension of time therefor as the department, for

14  good cause, may grant, in a form prescribed by the department,

15  file a report with the department, verified by the oath of two

16  officers of the organization or, if not a corporation, of two

17  persons who are principal managing directors of the affairs of

18  the organization, properly notarized, showing its condition on

19  the last day of the immediately preceding reporting period.

20  Such report shall include:

21         (f)  An actuarial certification that:

22         1.  The health maintenance organization is actuarially

23  sound, which certification shall consider the rates, benefits,

24  and expenses of, and any other funds available for the payment

25  of obligations of, the organization.

26         2.  The rates being charged or to be charged are

27  actuarially adequate to the end of the period for which rates

28  have been guaranteed.

29         3.  Incurred but not reported claims and claims

30  reported but not fully paid have been adequately provided for.

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  1         4.  The health maintenance organization has adequately

  2  provided for all obligations required by s. 641.35(3)(a).

  3         (3)  Every health maintenance organization shall file

  4  quarterly, for the first three calendar quarters of each year

  5  within 45 days after each of its quarterly reporting periods,

  6  an unaudited financial statement of the organization as

  7  described in paragraphs (1)(a) and (b). The statement for the

  8  quarter ending March 31 shall be filed on or before May 15,

  9  the statement for the quarter ending June 30 shall be filed on

10  or before August 15, and the statement for the quarter ending

11  September 30 shall be filed on or before November 15. The

12  quarterly report shall be verified by the oath of two officers

13  of the organization, properly notarized.

14         (8)  Each health maintenance organization shall file

15  one copy of its annual statement convention blank in

16  electronic form, along with such additional filings as

17  prescribed by the department for the preceding calendar year

18  or quarter, with the National Association of Insurance

19  Commissioners.  Each health maintenance organization shall pay

20  fees assessed by the National Association of Insurance

21  Commissioners to the department a reasonable fee to cover

22  costs associated with the filing and analysis of the documents

23  by the National Association of Insurance Commissioners.

24         Section 8.  Paragraph (a) of subsection (3) and

25  subsection (15) of section 641.35, Florida Statutes, are

26  amended to read:

27         641.35  Assets, liabilities, and investments.--

28         (3)  LIABILITIES.--In any determination of the

29  financial condition of a health maintenance organization,

30  liabilities to be charged against its assets shall include:

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  1         (a)  The amount, estimated consistently with the

  2  provisions of this part, necessary to pay all of its unpaid

  3  losses and claims incurred for or on behalf of a subscriber,

  4  on or prior to the end of the reporting period, whether

  5  reported or unreported, including contract and premium

  6  deficiency reserves. If a health maintenance organization,

  7  through a health care risk contract, transfers to any entity

  8  the obligation to pay any provider for any claim arising from

  9  services provided to or for the benefit of any subscriber, the

10  liabilities of the health maintenance organization under this

11  section shall include the amount of those losses and claims to

12  the extent that the provider has not received payment. No

13  liability need be established if the entity has provided to

14  the health maintenance organization a financial instrument

15  acceptable to the department securing the obligations under

16  the contract or if the health maintenance organization has in

17  place an escrow or withhold agreement approved by the

18  department which assures full payment of those claims. As used

19  in this paragraph, the term "entity" does not include this

20  state, the United States, or an agency thereof or an insurer

21  or health maintenance organization authorized in this state.

22

23  The department, upon determining that a health maintenance

24  organization has failed to report liabilities that should have

25  been reported, shall require a corrected report which reflects

26  the proper liabilities to be submitted by the organization to

27  the department within 10 working days of receipt of written

28  notification.

29         (15)  SPECIAL CONSENT INVESTMENT OF EXCESS FUNDS.--

30

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  1         (a)  After satisfying the requirements of this part,

  2  any funds of a health maintenance organization in excess of

  3  its statutorily required reserves and surplus may be invested:

  4         1.  Without limitation in any investments otherwise

  5  authorized by this part; or

  6         2.  In such other investments not specifically

  7  authorized by this part provided such investments do not

  8  exceed the lesser 5 percent of the health maintenance

  9  organization's admitted assets or 25 percent of the amount by

10  which a health maintenance organization's surplus exceeds its

11  statutorily required minimum surplus. A health maintenance

12  organization may exceed the limitations of this subparagraph

13  only with the prior written approval of the department.

14         (b)  Nothing in this section authorizes a health

15  maintenance organization to:

16         1.  Invest any funds in excess of the amount by which

17  its actual surplus exceeds its statutorily required minimum

18  surplus; or

19         2.  Make any investment prohibited by this code Any

20  investment of the health maintenance organization's funds not

21  enumerated in this part requires the prior approval of the

22  department.

23         Section 9.  Subsections (1) and (2) of section 641.365,

24  Florida Statutes, are amended to read:

25         641.365  Dividends.--

26         (1)(a)  A health maintenance organization shall not pay

27  any dividend or distribute cash or other property to

28  stockholders except out of that part of its available and

29  accumulated surplus funds which is derived from realized net

30  operating profits on its business and net realized capital

31  gains.  Dividend payments or distributions to stockholders

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  1  shall not exceed 10 percent of such surplus in any one year

  2  unless otherwise approved by the department.  In addition to

  3  such limited payments, a health maintenance organization may

  4  make dividend payments or distributions out of the health

  5  maintenance organization's entire net operating profits and

  6  realized net capital gains derived during the immediately

  7  preceding calendar or fiscal year, as applicable.

  8         (b)  Unless prior written approval is obtained from the

  9  department, a health maintenance organization may not pay or

10  declare any dividend or distribute cash or other property to

11  or on behalf of any stockholder if, immediately before or

12  after such distribution, the health maintenance organization's

13  available and accumulated surplus funds, which are derived

14  from realized net operating profits on its business and net

15  realized gains, are or would be less than zero.

16         (c)  A health maintenance organization may make

17  dividend payments or distributions to stockholders without the

18  prior written approval of the department when:

19         1.  The dividend is equal to or less than the greater

20  of:

21         a.  Ten percent of the health maintenance

22  organization's accumulated surplus funds which are derived

23  from realized net operating profits on its business and net

24  realized capital gains as of the immediate preceding calendar

25  year; or

26         b.  The health maintenance organization's entire net

27  operating profit and realized net capital gains derived during

28  the immediately preceding calendar year.

29         2.  The health maintenance organization will have

30  surplus equal to or exceeding 115 percent of the minimum

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  1  required statutory surplus after the dividend or distribution

  2  is made.

  3         3.  The health maintenance organization has filed a

  4  notice with the department at least 30 days prior to the

  5  dividend payment or distribution, or such shorter period of

  6  time as approved by the department on a case-by-case basis.

  7         4.  The notice includes a certification by an officer

  8  of the health maintenance organization attesting that after

  9  payment of the dividend or distribution the health maintenance

10  organization will have at least 115 percent of required

11  statutory surplus.

12         5.  The health maintenance organization has negative

13  retained earnings, statutory surplus in excess of $50 million,

14  and statutory surplus greater than or equal to 150 percent of

15  its required statutory surplus before and after the dividend

16  distribution is made based upon the health maintenance

17  organization's most recently filed annual financial statement.

18         (2)  The department shall not approve a dividend or

19  distribution in excess of the maximum amount allowed in

20  subsection (1) unless it determines that the distribution or

21  dividend would not jeopardize the financial condition of the

22  health maintenance organization, considering:

23         (a)  The liquidity, quality, and diversification of the

24  health maintenance organization's assets and the effect on its

25  ability to meet its obligations.

26         (b)  Any reduction of investment portfolio and

27  investment income.

28         (c)  History of capital contributions.

29         (d)  Prior dividend distributions of the health

30  maintenance organization.

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  1         (e)  Whether the dividend is only a pass-through

  2  dividend from a subsidiary of the health maintenance

  3  organization.

  4         (21)  "Health care risk contract" means a contract

  5  under which an individual or entity receives consideration or

  6  other compensation in an amount greater than 1 percent of the

  7  health maintenance organization's annual gross written premium

  8  in exchange for providing to the health maintenance

  9  organization a provider network or other services, which may

10  include administrative services.

11         Section 10.  Subsection (21) is added to section

12  641.19, Florida Statutes, to read:

13         641.19  Definitions.--As used in this part, the term:

14         (21)  "Health care risk contract" means a contract

15  under which an individual or entity receives consideration or

16  other compensation in an amount greater than 1 percent of the

17  health maintenance organization's annual gross written premium

18  in exchange for providing to the health maintenance

19  organization a provider network or other services, which may

20  include administrative services. The 1-percent threshold shall

21  be calculated on a contract-by-contract basis for each such

22  individual or entity and not in the aggregate for all health

23  care risk contracts.

24         Section 11.  This act shall take effect October 1,

25  2002.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 2192

  3

  4  Allows HMOs to invest funds in excess of statutory reserves
    and surplus up to specified limits.
  5
    Provides an insurer's right for review before the Division of
  6  Administrative Hearings (DOAH) under s. 120.57, F.S., of a
    Department of Insurance order placing the insurer under
  7  administrative supervision does not operate as an automatic
    stay of the order, and that during the period of supervision,
  8  an insurer may contest an action by the Department to DOAH,
    but such an appeal would not operate as an automatic stay.
  9
    Deletes the provision which prohibited insurers from appealing
10  actions taken by the Department, during the administration
    supervision of the insurer, to the Division of Administrative
11  Hearings.

12  Substitutes the term "health care risk contract" for the terms
    "capitation or other contractual arrangement" and defines this
13  term.

14  Exempts HMOs from recording liabilities associated with
    certain transferred risk when such HMOs have in place an
15  acceptable financial instruments or agreement approved by the
    Department which assures full payment of those claims.
16
    Permits HMOs with no retained earnings to pay or declare
17  dividends if they obtain prior written approval from the
    Department, and requires the Department to consider certain
18  factors when considering whether to approve a dividend in
    excess of a certain amount.
19
    Revises financial requirements for charitable organizations
20  that are authorized by the Department to issue donor annuity
    agreements.
21
    Specifies the method for how insurers report liabilities for
22  Special Disability Trust Fund assessments.

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