ACLI LAW & COMPLIANCE BOSTON 2009 MARKET CONDUCT REFORM
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- Horatio Willis Hensley
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1 ACLI LAW & COMPLIANCE BOSTON 2009 MARKET CONDUCT REFORM BACKGROUND Beginning in 2002, both a GAO Report and the NCOIL commissioned Price Waterhouse Coopers Report recommended significant market conduct reform. About the same time, the ACLI Board established their long term strategy for the life industry. They decided upon a two prong approach pursing an Optional Federal Charter and reform of the state regulatory system. The priorities for state reform were identified as speed to market and market conduct. The NAIC s response was adoption of a Market Conduct Modernization Plan, with a commitment to assess the quality of every insurer s conduct in the marketplace, uniformity, and interstate collaboration. The three pillars of this action plan were market analysis, market conduct and interstate collaboration. o Some committed regulators and NAIC staff embarked upon an ambitious project to implement the Modernization Plan. All the NAIC handbooks, guidance, outlines, etc. were updated to reflect the market analysis approach and promote collaboration and uniformity. (At one point, the NAIC had 14 Task Forces, Sub committees, etc. working on the reforms.) o Various NAIC electronic databases were developed there are now 7 databases.
2 o Each state was required to perform basic analysis on all their domestic companies with the data stored in an NAIC database available to all states. In February 2004, the first NCOIL Market Conduct Surveillance Model Law was adopted, with ACLI support. o The NAIC objected and NCOIL agreed to work on a joint Model. o The NAIC then proceeded to modify most of the significant reform provisions in the NCOIL Model essentially making them optional. For example, all the provision that read that the Commissioner shall, were amended to read the Commissioner may. This watered down Model was adopted Oct. 2004, with 21 Commissioners voting against a most unusual outcome for the NAIC. All the industry trade associations opposed the Model. o In early 2005, the Insurance Chair in the TX Legislature, who had been active in the NCOIL drafting, introduced legislation in TX. ACLI worked with the sponsor to shape a bill that included many of the significant provisions from the original NCOIL Model. o In the fall of 2005, in anticipation of other states deciding to act and wanting to avoid a repeat of the last minute, frenzied drafting we had just experienced in TX, the ACLI invited the Health and P & C trades to participate in development of a Model that we could all support. o The All Trades group agreed upon a draft and then began negotiations with NCOIL. o In Nov. 2006, NCOIL, working from the industry draft, adopted another 2
3 NCOIL Market Conduct Surveillance Model Law, with support of ACLI and all the other trades. CURRENT STATUS OF MARKET CONDUCT ANNUAL STATEMENT This last March, Commissioner Holland, current chair of the NAIC Market Conduct and Consumer Protection D Committee, appointed a sub group to honor the promise made to the pilot states and companies to evaluate the MCAS. She asked two regulators (OH & WI) who have been active in the project from inception, two consumer reps, the AIA and Prudential to serve on this subgroup. o The group has designed an on line survey instrument for the participating states. We are asking the regulators to rank the usefulness of the ratios that are developed through market analysis. We hope to ascertain the value of the various ratios in identifying problems in the market or problems with specific companies. The initial survey will focus on the MCAS for P & C insurers. A similar survey will soon be developed to evaluate the value of the ratios and data collected on the Life and Annuity MACS. o As the insurer representatives on this group, the AIA and I have just received the go ahead to draft a similar survey of insurers. We hope to gather information as to the difficult and/or cost of collecting the various required data elements. For problematic data, we will inquire as to alternative data that could provide the same information. This will also be an opportunity for industry to make over all suggestions that could make this process less burdensome. I have asked Kelly and the ACLI Market Conduct Committee to assist in this project and hope that many member companies will participate. 3
4 o Commissioner Holland has also indicated that she intends to honor the former D Committee Chair s commitment to develop some sort of consumer report from the MCAS data. The consumer reps now acknowledge that the raw data is and should be confidential; however, they want some sort of report card that might assist consumers in making their buying decisions. o 29 states will participate in the MCAS this year, and the NAIC has approved inclusion of all states by STATUS OF REFORMS TODAY NAIC is currently working on an Accreditation Program for market conduct and Commissioner Tyler (MD) intends to have a product by the end of this year. Key to the value of this effort will be the determination as to whether this becomes another NAIC accreditation requirement, or if adherence is voluntary. The draft that was discussed at the NAIC spring meeting: o Requires that a state have laws and regulations that ensure sufficient authority for the collection of data, market analysis, regulatory interventions and collaboration with other states. It also requires that the NAIC Market Conduct Surveillance Model Act or the NAIC Model Law on Examinations, or substantially similar provisions, be part of state law. The draft is full of shall, rather than may, the very language that the regulators found so objectionable in the original NCOIL Model. o That first draft required a 5 year exam on each domestic insurer. Several regulators effectively argued that this would be a step backward, and that the focus should not be on periodic exams, but on market analysis leading to targeted exams. 4
5 o There was an interesting discussion about domestic deference. The NCOIL Model includes this requirement, with appropriate exceptions that are at the Commissioners discretion and not subject to appeal. Many Commissioners oppose the NCOIL Model because of that provision, as they view it as a limit on their oversight of foreign insurers. The insurance industry has supported this provision as a way to reduce the number of duplicative exams. It is interesting to hear how time has changed perspectives on the issue. At the spring meeting, many regulators spoke in support of the need for more collaboration, coordination and communication among the states. Some indicated that the major value of accreditation would be that they could then confidently rely on the market conduct actions of other accredited states. Industry spokespersons agreed that it may no longer be necessary to require domestic deference, if the collaboration, coordination and communication that many regulators seem to support effectively reduces duplicative exams and repetitive, state specific data requests. This discussion is not over, but seems to be moving in the right direction. The D Committee is also reviewing, updating and consolidating the various NAIC databases. The NAIC appears to have moved beyond serving as a warehouse for state data. Plans are in the works for NAIC staff to conduct national analysis and reporting. In April of this year, the GAO issued another report. The report found that while the NAIC has established goals for improving market conduct regulation, there remain: Differences among states that limit progress toward reciprocity and uniformity; Inefficiencies in the process for both regulators and insurers; Uneven protections for consumers; Variations in the use of the Handbook Guidance, due in some cases to 5
6 inconsistent state laws; The accreditation program has not been implemented, and While some provisions of the NCOIL Model have been adopted in 13 jurisdictions, and portions of the NAIC Model in 5 jurisdictions, not one of the laws or regulations is uniform. And, 33 jurisdictions have not taken any action. When GAO inquired as to why the Models had not been adopted in more states, NAIC leaders responded that the Models would restrict their ability to regulate their respective insurance markets as they saw fit. ON GOING CONCERNS While there seems to be sensitivity to confidentiality concerns, the NAIC has none of the authority that a regulator would have to protect information. Is a super regulator being created in the form of the enhanced NAIC? What is the legal authority? To whom is it accountable? 6
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