06 September 2017

Regulatory Update: NAIC Summer 2017 National Meeting

The National Association of Insurance Commissioners held its Summer 2017 National Meeting in Philadelphia, Pennsylvania from August 6 to 9, 2017. This Sidley Update summarizes the highlights from this meeting.

1. NAIC Task Force and Working Group Adopt Insurance Data Security Model Law 

The Innovation and Technology (EX) Task Force and Cybersecurity (EX) Working Group adopted a final version of the Insurance Data Security Model Law (IDS Model Law). The IDS Model Law next must be approved by both the Executive (EX) Committee and Plenary, which is anticipated by year-end. Assuming such approval, the IDS Model Law, when adopted by a state, would apply to virtually all insurance licensees in such state and provide standards for data security and the investigation, and notification to the insurance commissioner, of a cybersecurity event. (Additional information below)

2. NAIC Proposes Predictive Analytics Team to Review Insurers’ Rating Models

The Big Data (EX) Working Group (Big Data Working Group) proposed the formation of a Predictive Analytics Team (PAT) to assist states in reviewing complex rating models for personal lines automobile and homeowners’ insurance. The PAT would consist of NAIC employees with predictive analytics, insurance and actuarial experience. The proposal is in response to the Big Data Working Group’s charge to “[p]ropose a mechanism to provide resources and allow states to share resources to facilitate states’ ability to conduct technical analysis of and data collection related to the states’ review of complex models used by insurers for underwriting, rating and claims.” A Predictive Analytics Working Group (PAWG), consisting of 5 to 10 regulatory actuaries, would also be created. Among other matters, the PAWG would formulate a checklist of required data that insurers must include in their SERFF rate filings for any models used in their rating plans. The checklist would facilitate a state’s determination of whether the model should be sent to the PAT for review (e.g., if it is a new model or involves updates to a previously approved model). If a model were referred to the PAT, the PAT would issue either a report to the state with its findings or an objection letter to the insurer requesting additional information. The PAT would maintain a record of all models reviewed for access by the states. (Additional information below)

3. NAIC Ceases Efforts to Develop Unclaimed Life Insurance and Annuities Model Act

The Life Insurance and Annuities (A) Committee ((A) Committee) voted to disband the Unclaimed Life Insurance Benefits (A) Working Group (Unclaimed Property Working Group) and to cease efforts on the draft Unclaimed Life Insurance and Annuities Model Act (NAIC Unclaimed Property Model Act). The vote followed the Unclaimed Property Working Group’s report regarding the three issues with respect to which the Unclaimed Property Working Group has been unable to achieve consensus, namely: (a) the applicability of the NAIC Unclaimed Property Model Act generally (i.e., retroactive versus prospective application), (b) the applicability of the NAIC Unclaimed Property Model Act to policies that have lapsed within 18 months of the effective date of the NAIC Unclaimed Property Model Act, and (c) the definition of “Death master file match.” (Additional information below)

4. NAIC Addresses the Changing Marketplace for Long-Term Care Insurance Products, Including the Potential Impact on Guaranty Funds

The NAIC has formed the Long-Term Care Insurance (B/E) Task Force (LTC Task Force), which is charged with coordinating the NAIC’s work regarding the changing long-term care (LTC) insurance marketplace, with a particular focus on the financial solvency of LTC insurers, financial reporting and actuarial valuation standards applicable to LTC insurance, proposed rate increases on existing LTC insurance blocks and the impact of LTC insurer insolvencies on state guaranty funds. In connection with such issues, the NAIC has approved model law development requests (a) to re-open and potentially amend the Life and Health Insurance Guaranty Association Model Act (Guaranty Fund Model Act) for the limited purpose of addressing issues related to LTC insurer insolvencies, and (b) to develop the Short Duration Long-Term Care Policies Model Act and Regulation. (Additional information below)

5. NAIC Developing Model Act Regarding Travel Insurance

Through the Travel Insurance (C) Working Group, the NAIC is developing the NAIC Travel Insurance Model Act (NAIC Travel Model Act), which is intended to provide a uniform, comprehensive framework for regulating the marketing and sale of insurance products related to travel protection. The Travel Insurance (C) Working Group intends to finalize and adopt the NAIC Travel Model Act on an expedited basis. (Additional information below)

6. NAIC Evaluates Impact of U.S.-EU Covered Agreement on NAIC Initiatives

Several NAIC Task Forces and Working Groups indicated during the Summer Meeting that they are uncertain about how to proceed with certain NAIC initiatives following the recent announcement that the U.S. Department of the Treasury and the Office of the U.S. Trade Representative intend to sign the “Bilateral Agreement Between the European Union and the United States of America on Prudential Measures Regarding Insurance and Reinsurance” (Covered Agreement). The Covered Agreement, the final legal text of which was submitted to Congress on January 13, 2017, addresses the following two issues of importance to the NAIC: (a) group supervision of insurers and (b) reinsurance collateral requirements. (Additional information below)

7. NAIC Continues Work on Risk-Based Capital Initiatives

The NAIC’s Working Groups are (a) considering changes to the calculation of risk-based capital (RBC) when an insurer receives a Federal Home Loan Bank (FHLB) advance and posts related collateral; (b) implementing a catastrophe risk factor (Rcat) in the property-casualty RBC formula, effective for year-end 2017, and considering whether to include additional perils in the Rcat; and (c) implementing a revised property-casualty RBC blank and instructions, effective for year-end 2018, that references a new credit risk charge for reinsurance recoverables as a component of the credit risk charge. (Additional information below)

8. NAIC Advances Alternative Proposal Regarding Treatment of Filing Exempt and Private Letter Securities

The Valuation of Securities (E) Task Force (VOS Task Force) continued discussions regarding how it should proceed now that it has decided against adopting a controversial proposal that would have given the Securities Valuation Office (SVO) the power to override ratings of nationally recognized statistical rating organizations for filing exempt (FE) and private letter (PL) securities. The controversial proposal would have amended the Purposes and Procedures Manual (P&P Manual) of the NAIC Investment Analysis Office (IAO) to add a verification process for FE securities and securities that are subject to PL ratings and would have transferred responsibility of FE and PL rating procedures from insurance companies to the SVO. After scrapping the proposal, the VOS Task Force decided it will instead seek enhancements to the FE process (FE Enhancements), which would ultimately be reflected in the P&P Manual. Shortly before the Summer Meeting, the VOS Task Force exposed for comment a series of memoranda setting forth proposed policy (and related implementing amendments to the P&P Manual) to guide the development of the FE Enhancements. (Additional information below)

9. NAIC Continues Consideration of Pre-Dispute Mandatory Arbitration, Choice-of-Law and Choice-of-Venue Clauses

The Market Regulation and Consumer Affairs (D) Committee adopted revisions to the charge of the Pre-Dispute Mandatory Arbitration Clauses (D) Working Group (Arbitration Clauses Working Group). The original charge authorized the Arbitration Clauses Working Group to either prohibit the use of pre-dispute mandatory arbitration, choice-of-law and choice-of-venue clauses (Clauses) or take no action with respect to the Clauses. The revised charge provides additional options. In addition to prohibition, the Arbitration Clauses Working Group may develop (a) a new model act governing use of the Clauses or (b) other guidance, such as a bulletin, regarding their use. The revised charge also allows for distinct treatment of personal lines and commercial insurance for purposes of determining appropriate use (or prohibition) of the Clauses.

Additional Information

1. NAIC Task Force and Working Group Adopt Insurance Data Security Model Law (Continued From Above)

Specific requirements of the IDS Model Law include, in relevant part:

  • implementation of a comprehensive written information security program based upon a licensee’s risk assessment process (as specified under the IDS Model Law) and the licensee’s size, complexity and activities;
  • ongoing risk assessment and implementation of security measures to mitigate identified risks;
  • board oversight through annual written reports from management;
  • diligence in selection and oversight of third-party service providers who receive or access nonpublic information;
  • establishing a written incident response plan;
  • annual compliance certification to the domiciliary insurance commissioner; and
  • notification to the insurance commissioner within 72 hours after determining that a cybersecurity event has occurred, if certain criteria is met.

If a licensee is already in compliance with the cybersecurity regulation issued by the New York State Department of Financial Services (which became effective on March 1, 2017, with ongoing compliance deadlines over the following 24 months), the IDS Model Law provides that such licensee is also deemed to be in compliance with the IDS Model Law.

2. NAIC Proposes Predictive Analytics Team to Review Insurers’ Rating Models (Continued From Above)

Stakeholders expressed several concerns with the proposed structure including:

  • the structure delegates regulatory functions that are within the purview of the states to the NAIC without legal authority;
  • confidentiality and trade secret protections for intellectual property embedded in the models are lacking;
  • the qualifications of NAIC staff to review complex models are unclear;
  • innovation and speed-to-market would be inhibited; and
  • any “checklist” should be formulated by the Casualty Actuarial and Statistical (C) Task Force, not the proposed PAWG.

The Big Data Working Group clarified that the intent of the PAT would be to serve in merely a technical consulting role and as a resource for states to improve efficiency and speed-to-market, not to operate as another regulator. Further discussion of the proposal is expected during the Big Data Working Group’s next conference call.

3. NAIC Ceases Efforts to Develop Unclaimed Life Insurance and Annuities Model Act (Continued From Above)

Immediately following such report, Commissioner Dave Jones of California expressed his belief that, even with continued efforts, the Unclaimed Property Working Group would be not be able to achieve consensus on these issues and his agreement with the American Council of Life Insurers (ACLI) that further work on the NAIC Unclaimed Property Model Act would not be a good use of state insurance department resources. While acknowledging that California (which originally chaired the drafting subgroup that prepared the NAIC Unclaimed Property Model Act) had invested significant staff resources in developing the NAIC Unclaimed Property Model Act, California made the motion to disband the Unclaimed Property Working Group and to cease work on the NAIC Unclaimed Property Model Act. The motion passed with virtually no discussion (as no other members of the (A) Committee commented, and representatives from the ACLI and the Center for Insurance Research made only brief remarks and did not object to California’s motion).

The draft NAIC Unclaimed Property Model Act was the result of over three years of work led by the (A) Committee and its Working Groups and Drafting Subgroups. The draft NAIC Unclaimed Property Model Act was largely based on the National Conference of Insurance Legislators (NCOIL) Model Unclaimed Life Insurance Benefits Act (NCOIL Unclaimed Property Model Act), with some differences based on the requirements contained in the related regulatory settlement agreements that regulators have entered into with several insurers. As of early June 2017, according to the ACLI, 25 states had adopted statutes similar to the NCOIL Unclaimed Property Model Act, legislation similar to the NCOIL Unclaimed Property Model Act was pending in five states, and only two states (Illinois and Florida) had enacted unclaimed property insurance laws that substantially deviated from the NCOIL Unclaimed Property Model Act.

4. NAIC Addresses the Changing Marketplace for Long-Term Care Insurance Products, Including the Potential Impact on Guaranty Funds (Continued From Above)

Amendments to Guaranty Fund Model Act

The Receivership Model Law (E) Working Group (Receivership Working Group) has formed an ad hoc drafting group to prepare the amendments to the Guaranty Fund Model Act. The drafting group will be co-chaired by Colorado and Washington, and at least 7 other states and 18 interested parties have volunteered to participate in the drafting group. The Receivership Working Group plans to prepare and adopt the amendments to the Guaranty Fund Model Act on an expedited basis to allow for adoption by the Executive (EX) Committee and Plenary before December 31, 2017 (ideally) in order to allow individual states to propose the amendments for adoption during the spring 2018 legislative session.

Through a series of calls preceding the Summer Meeting, the Receivership Working Group determined that the amendments will, in relevant part, make the following changes to the assessment base for LTC insurer insolvencies:

  • Merge the life (and annuities) and health insurance lines of business. This was agreed in order to resolve the perceived inequity of health insurers paying the majority of the assessment for a line of business they generally don’t write. (Although LTC insurance is primarily written by life insurers, because LTC insurance is classified as a health product, only health insurers—the majority of which do not sell LTC insurance—currently are subject to assessment for LTC insurance insolvencies).
  • Include health maintenance organizations. Health maintenance organizations (HMOs) are excluded from the scope of the Guaranty Fund Model Act. However, given the increasing similarities between HMO products and health insurance policies, health insurers have argued that HMOs will have a competitive advantage over health insurers if HMOs continue to be excluded from the scope of the Guaranty Fund Model Act (particularly for purposes of the assessment base for LTC insurer insolvencies). HMO trade organizations oppose such amendments, but the drafting group nonetheless plans to base the amendments to the Guaranty Fund Model Act on a bill that was recently considered by the Colorado legislature, which included HMOs within the scope of the assessment base.

Short Duration LTC Insurance

The Short Duration Long-Term Care Policies (B) Subgroup is drafting the Short Duration Long-Term Care Policies Model Act and Regulation, which will regulate LTC insurance products of short duration (which typically provide the same type of benefits as LTC insurance, but for a period less than 12 consecutive months, and are excluded from regulation under both the Long-Term Care Insurance Model Act and Regulation and the Individual Accident and Sickness Insurance Minimum Standards Model Act and Regulation).

5. NAIC Developing Model Act Regarding Travel Insurance (Continued From Above)

Many states have adopted a version of the NCOIL Limited Lines Travel Insurance Model Act (NCOIL Travel Model Act), which generally addresses licensing requirements related to selling, soliciting or negotiating travel insurance. In March 2017, NCOIL adopted amendments to the NCOIL Travel Model Act, now known as the “Travel Insurance Model Act.” As amended, the NCOIL Travel Model Act provides a comprehensive framework for regulating travel insurance and other travel-related products, prescribing rules related to, among other things, premium taxes, form and rate filing, the competitiveness of the travel insurance market and related sales practices (including a prohibition against requiring consumers to opt out of the purchase of travel insurance). The initial draft of the NAIC Travel Model Act is nearly identical to the amended NCOIL Travel Model Act, with the key differences being (a) the deletion of the “competitive market” section of the amended NCOIL Travel Model Act and (b) provision for electronic delivery of insurance materials to start the policyholder’s 10-day free look period. Additional differences between the NAIC Travel Model Act and the NCOIL Travel Model Act will likely develop throughout the comment process on the NAIC Travel Model Act.

6. NAIC Evaluates Impact of U.S.-EU Covered Agreement on NAIC Initiatives (Continued From Above)

Group Supervision of Insurers

  • The NAIC’s Financial Regulation Standards and Accreditation (F) Committee ((F) Committee) voted to defer action on making the NAIC’s Corporate Governance Annual Disclosure Model Act and Corporate Governance Annual Disclosure Model Regulation a new state accreditation standard. Only a handful of states have adopted the models and, at the meeting, (F) Committee members noted that legislators have been reluctant to adopt the models before it is determined whether the Covered Agreement will result in any additional corporate governance requirements.
  • The (F) Committee also voted to defer action on updating its accreditation standards to include the 2014 revisions to the Insurance Holding Company System Regulatory Act due to uncertainty regarding the impact that the Covered Agreement may have on group supervision of insurers. Such revisions address the authority of an insurance commissioner to act as the group-wide supervisor for an internationally active insurance group or to acknowledge the authority of another regulatory official, from another jurisdiction, to so act.

Reinsurance Collateral Requirements

  • Pending the signing of the Covered Agreement, the Reinsurance (E) Task Force directed its Qualified Jurisdiction (E) Working Group to discontinue further work on its report concerning EU member state implementation of Solvency II and the potential impact on the “Qualified Jurisdiction” status of France, Germany, Ireland and the United Kingdom. The Reinsurance (E) Task Force had previously asked the Qualified Jurisdiction (E) Working Group to consider how to best address jurisdictions that have been afforded Qualified Jurisdiction status but are imposing Solvency II-related restrictions on U.S. reinsurers doing business in those Qualified Jurisdictions.
  • The Reinsurance (E) Task Force also acknowledged that if the Covered Agreement is implemented, the NAIC Credit for Reinsurance Model Act and Regulation (CFR Model Laws), which establish reduced collateral requirements for “certified reinsurers,” will need to be revised (again), and such revisions will need to be made an accreditation standard. The NAIC recently made the certified reinsurer provisions of the CFR Model Laws an accreditation standard.

7. NAIC Continues Work on Risk-Based Capital Initiatives (Continued From Above)

RBC Charge for Assets Pledged as Collateral for FHLB Advances

Currently, the assets posted as collateral for an FHLB advance remain on the insurer’s balance sheet and generate an RBC amount based on the credit risk of the asset. The FHLB advance is recorded as either a borrowing or as a funding agreement and it is generally included in the insurer’s C-3 modeling to generate an RBC amount for asset-liability mismatch. Additionally, since such assets are classified as “non-controlled assets,” an RBC factor of 1.3 percent is applied to the collateral (in addition to any other RBC amounts for the assets and liabilities).

The Life Risk-Based Capital (E) Working Group is considering a proposal from the ACLI that would result, in relevant part, in the following RBC changes related to FHLB advances:

  • For FHLB advances subject to C3P1 Cash Flow Testing, a factor of zero would apply to the assets pledged as collateral, up to the amount of the FHLB advance, and a factor equal to the NAIC’s credit risk charge for FHLB as a counterparty would apply to assets pledged in excess of the amount of the FHLB advance. For FHLB advances that are not subject to C3P1 Cash Flow Testing, the NAIC’s credit risk charge for FHLB as a counterparty would apply to the entire amount of pledged collateral supporting the advance.
  • The amount of assets pledged in excess of the amount of the FHLB advance (which are available to be recalled by the insurer), would not be considered non-controlled asset risk and would be excluded from the C-0 RBC risk charge.
  • Collateral supporting certain FHLB spread-lending activities would be subject to a higher non-controlled asset charge (equal to the factor for a Baa Corporate Bond asset factor) if the amount of the related FHLB advance exceeds 5 percent of the insurer’s total net admitted assets, unless the insurer has received authorization for the higher advance amount from its domiciliary state insurance regulator.

Catastrophe Risk Factor

After more than a decade of deliberations, the property-casualty RBC formula includes, effective for year-end 2017, the Rcat, which computes Total RBC after Covariance. The Rcat is currently a combination of earthquake and hurricane risks, but the Property and Casualty Risk-Based Capital (E) Working Group (P&C RBC Working Group) is considering whether to include additional catastrophe perils. Its Catastrophe Risk (E) Subgroup has identified the following as potential additions: (1) tornado (severe convective storm); (2) flood (non-U.S., and U.S. as private market develops); (3) terrorism; (4) wildfire; (5) winter storm; (6) cyber risk; (7) fire following earthquake; (8) workers compensation earthquake exposure; and (9) industrial accident.

Credit Risk Charge for Reinsurance Recoverables

Calculation of the credit risk charge for reinsurance recoverables, included in the revised property-casualty RBC blank and instructions, effective for year-end 2018, depends on: (1) the financial strength rating assigned to the reinsurer from which balances are due; and (2) whether such amounts are collateralized or uncollateralized. A reinsurer’s financial strength rating is the same rating assigned to it for purposes of determining the amount of required collateral for a cedent to obtain credit for reinsurance (e.g., Secure-1, Secure-2, Secure-3, Secure-4, Secure-5, Vulnerable-6). Reinsurance balances receivable on reinsurance ceded to non-affiliated companies (excluding certain pools) and to alien affiliates are subject to the charge. The following types of cessions are exempt from the charge: (a) cessions to state-mandated involuntary pools and associations or involving federal insurance programs; and (b) cessions to U.S. parents, subsidiaries and affiliates.

8. NAIC Advances Alternative Proposal Regarding Treatment of Filing Exempt and Private Letter Securities (Continued From Above)

The materials that the VOS Task Force exposed for comment set forth the following key proposals related to the FE Enhancements:

Discrepancies Between NAIC/Insurer Designations

Where an insurer believes an official NAIC designation is incorrect, it could report its own computed designation, along with an “RE” suffix that would flag the discrepancy. The insurer would then follow up with the IAO to resolve the conflicting designations; such interactions should eventually reduce future conflicts. The VOS Task Force will need to establish “reasonable grounds” for using such a process.

Role of the IAO

The IAO must be allowed to make changes to automated FE designations (for both publicly and privately rated securities) in order to reduce reporting differences in the future. However, such changes should be limited to correcting an error in computing an FE designation produced incorrectly by the automated process, or correcting some other anomaly in the NAIC designation. The VOS Task Force will confirm that the IAO has responsibility for studying and recommending ways to improve the NAIC designation production process, including designations based on credit ratings. The VOS Task Force must decide whether to delete or modify language in the P&P Manual that currently gives the SVO discretion to ignore a credit rating.

Securities Subject to PL Ratings

Beginning January 1, 2018, PL ratings would need to be either included in rating agency feeds (used for the automated FE process) or filed with the IAO so they can be manually added to the FE database. PL rated securities reported in an insurer’s annual statutory financial statements would have a “PL” suffix added to the designation. However, existing filing options could be used in instances where PL ratings cannot be immediately added to rating agency feeds or cannot be filed with the IAO for confidentiality or other reasons. (This process would also apply to FE securities that receive publicly disclosed ratings, reflecting the SVO’s view that securities subject to PL ratings are a sub-population of FE securities). Over time, gaps with PL ratings should be eliminated as insurers work with rating agencies to expand their feeds and adjust nondisclosure agreements to allow for sharing with the IAO.

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