CHAPTER 163
FORMERLY
HOUSE BILL NO. 241
AS AMENDED BY HOUSE AMENDMENT NOS. 1, 3 AND 4 AND SENATE AMENDMENT NO. 1
AN ACT TO AMEND TITLE 19 OF THE DELAWARE CODE RELATING TO WORKMEN'S COMPENSATION LOSS COSTS RATING.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amended Title 19 of the Delaware Code by adding thereto a new chapter, designated as Chapter 26, which new chapter shall read as follows:
"Chapter 26. Workmen's Compensation Rating
§2601 Scope of Chapter
§2602 Definitions
§2603 Competitive market; hearing
§2604 Rate-making standards
§2605 Review by Commissioner
§2606 Rules not to affect dividends
§2607 Membership in Advisory Organization
§2608 Interchange of rating plan date; consultation; cooperative
action in rate making
§2609 Rate filings
§2610 Review of insurance filing
§2611 Improper rates; hearing
§2612 Restrictions on certain insurers; waiting period
§2613 Delay of rates in noncompetitive market
§2614 Challenge and review of application of rating system
§2615 Consent to rate
§2616 Acts reducing competition prohibited
§2617 Advisory Organization: Permitted Activity
§2618 Residual Market Mechanisms
§2619 Penalties
§2620 Appeals from Commissioner
§2621 Transition
§2622 Severability
§2623 Effective Date
§2601. Scope of Chapter.
This chapter applies to workmen's compensation and related employer's liability insurance but shall not apply to reinsurance.
§2602. Definitions.
(a) "Accepted actuarial standards" shall mean the standards adopted by the Casualty Actuarial Society in its Statement of Principles Regarding Property and Casualty Insurance Ratemaking, and the Standards of Practice adopted by the Actuarial Standards Board.
(a) "Advisory organization" shall mean any organization or person which either has two or more member insurers or is controlled either directly or indirectly by two or more insurers and which assists insurers in rate making related activities. Two or more insurers having a common ownership or operating in this state under common management or control constitute a single insurer- for purposes of this definition. Advisory organization does not include a joint underwriting association, any actuarial or legal consultant, any employee of an insurer or insurers under common control or management or their employees or manager.
(a) "Classification system" shall mean the plan, system, or arrangement for recognizing differences in exposure to hazards among industries, occupations or operations of insurance policyholders.
(a) "Developed losses" shall mean adjusted losses, (including loss adjustment expenses) using accepted actuarial standards, to eliminate the effect of differences between current payment or reserve estimates and those needed to provide actual ultimate loss (including loss adjustment expense) payments.
(e) "Expenses" shall mean that portion of any rate attributable to acquisition, filed supervision, and collection expenses, general expenses, and taxes, licenses, and fees.
(f) "Experience rating" shall mean a rating procedure utilizing past insurance experience of the individual policyholder to forecast future losses by measuring the policyholder's loss experience against the loss experience of policyholders in the same classification to produce a prospective premium credit, debit or unity modification.
(g) "Insurer" shall mean any person licensed to write workmen's compensation insurance under the laws of the State of Delaware.
(a) "Loss trending" shall mean any procedure for projecting developed losses to the average date of loss for the period during which the policies are to be effective, including loss ratio trending.
(b) "Market" shall mean the interaction in this State between buyers and sellers of workmen's compensation and employer's liability insurance pursuant to the provisions of this chapter.
(c) "Prospective loss costs" shall mean historical aggregate losses and loss adjustment expenses, including all assessments that are loss-based, projected through development to their ultimate value and through trending to a future point in time, ascertained by accepted actuarial standards. Prospective loss costs do not include provisions for profit or expenses other than loss adjustment expenses and assessments that are loss-based.
(d) "Pure premium rate" shall mean that portion of the rate which represents the loss cost per unit off exposure including loss adjustment expense.
(e) "Rate" or "rates" shall mean rate of premium, policy and membership fee, or any other charge made by an insurer for or in connection with a contract or policy of workmen's compensation and employer's liability insurance, prior to application of individual risk variations based on loss or expense considerations, and does not include minimum premiums.
(m) "Statistical plan" shall mean the plan, system or arrangement used in collecting data.
(n) "Supplementary rate information" shall mean any manual or plan of rates, statistical plan, classification system, minimum premium, policy fee, rating rule, rate-related underwriting rule, and any other information needed to determine the applicable premium for an individual insured and not otherwise inconsistent with the purposes of this chapter, as prescribed by rule of the Commissioner.
(o) "Supporting information" shall mean the experience and judgment of the filer and the experience or data of other insurers or advisory organizations relied on by the filer, the interpretation of any statistical data relied on by the filer, descriptions of methods used in making the rates, and any other similar information required to be filed by the Commissioner.
(p) "Reserve estimates" shall mean provisions for insurer obligations for future payments of loss and/or loss adjustment expenses.
(q) "Contingencies" shall mean provisions in rates to recognize the uncertainty of the estimates of losses, loss adjustment expenses, other operating expenses, investment income and profit which comprise those rates. Such provisions may be explicit (i.e., a specific charge to reflect systematic variations of estimated costs from expected costs), implicit (i.e., a consideration in selecting a single estimate from a reasonable range of estimates) or both.
§2603. Competitive market: hearing.
(a) A competitive market is presumed to exist unless the Commissioner, after a hearing, issues an order stating that a reasonable degree of competition does not exist in the market. Such order shall expire no later than one year after issue.
(b) (1) In determining whether a reasonable degree of competition exists, the Commissioner shall consider the following factors:
(i) The number of insurers actively engaged in providing coverage;
(ii) Market shares and changes in market shares;
(iii) Ease of entry;
(iv) Market concentration as measured by the Herfindahl-Hirschman Index;
(v) Whether long-term profitability for insurers in the market is unreasonably high in relation to the risks being insured;
(vi) Whether long-term profitability for insurers in the market is reasonable in relation to industries of comparable business risk; and
(v) Generally accepted and relevant tests relating to competitive market structure, market performance, and market conduct.
(2) The workmen's compensation insurance market shall not be deemed noncompetitive if the market concentration of the 50 largest insurers satisfies the United States Department of Justice merger guidelines for an unconcentrated market.
(c) All determinations by the Commissioner shall be made on the basis of findings of fact and conclusions of law.
§2604. Rate-making standards•
(a) Rates shall not be excessive, inadequate, or unfairly discriminatory.
(1) Rates in a competitive market are not excessive. Rates in a noncompetitive market are excessive if they are likely to produce a long-run profit that is unreasonably high in relation to services rendered.
(2) A rate shall not be deemed inadequate unless:
(i)(a) It is clearly insufficient to sustain projected losses and expenses; and
(b) The rate is unreasonably low, and the use of the rate by the insurer has had or, if continued, will tend to create a monopoly in the market; or
(ii) Funds equal to the full, ultimate cost of anticipated losses and loss adjustment expenses are not produced when prospective loss costs are applied to anticipated payrolls.
(3) Unfair discrimination exists if, after allowing for practical limitations, price differentials fail to reflect equitably the differences in expected losses and expenses. A rate is not unfairly discriminatory because different premiums result for policyholders with different loss exposures or expense levels.
(b) In determining whether rates comply with standards under subsection (a) of this section, due consideration shall be given to:
(1) Past and prospective loss experiences within and outside this State, in accordance with accepted actuarial principles;
(2) Catastrophe hazards and contingencies;
(3) Past and prospective expenses, within and outside Delaware;
(1) Loadings for leveling premium rates overtime for dividends, savings, or unabsorbed premium deposits allowed or returned by insurers to their policyholders, members or subscribers;
(2) A reasonable margin for underwriting profit; and
(3) All other relevant factors within and outside Delaware.
(c) The systems of expense provisions included in the rates for use by an Insurer or group of insurers may differ from those of any other Insurers or groups of insurers to reflect the requirements of the operating methods of the insurer or group of insurers.
(a) The rates may contain provisions for contingencies and an allowance permitting a reasonable profit. In determining the reasonableness of a profit, consideration should be given to all investment income attributable to premiums and the reserves associated with those premiums.
§2605. Review by Commissioner
The Commissioner may investigate and determine whether or not rates in this State are excessive, inadequate, or unfairly discriminatory. In any such investigation and determination, the Commissioner shall give due consideration to those factors specified in §2604 of this chapter.
§2606. Rules not to affect dividends
No advisory organization shall adopt any rule that would prohibit or regulate the payment of dividends, savings or unabsorbed premium deposits allowed or returned by insurers to their policyholders, members or subscribers. A plan for the payment of dividends, savings or unabsorbed premium deposits allowed or returned by insurers to their policyholders is not considered a rating plan or system. It is an unfair trade practice to make the payment of a dividend or any portion thereof conditioned upon renewal of the policy or contract.
§2607. Membership in Advisory Organization.
(a) The Commissioner shall designate an advisory organization to assist him in gathering, compiling, and reporting relevant statistical information. Every workmen's compensation insurer shall record and report its workmen's compensation experience to the designated advisory organization as set forth in the uniform statistical plan approved by the Commissioner.
(b) Each workmen's compensation insurer shall be a member of the workmen's compensation advisory organization. Each workmen's compensation insurer may adhere to the policy forms filed by the advisory organization.
(c) Every workmen's compensation insurer shall adhere to a uniform classification system and uniform experience rating plan that has been filed with the Commissioner by the advisory organization and approved by the Commissioner.
(d) Subject to the approval of the Commissioner, the advisory organization shall develop and file rules reasonably related to the recording and reporting of data pursuant to the uniform statistical plan, uniform experience rating plan, and the uniform classification system.
(e) The methodology of the experience rating plan required under subsection (b) shall have as a basis:
(1) Reasonable eligibility standards;
(2) Incentives for loss prevention; and
(3) A premium differential so as to encourage safety.
(f) The uniform experience rating plan shall be the exclusive means of providing prospective premium adjustment based upon measurement of the loss producing characteristics of an individual insured. An insurer may file a rating plan that provides for retrospective premium adjustments based upon an insured's past experience.
§2608 Interchange of rating plan data: consultation: cooperative action in rate making.
(a) Reasonable rules and plans may be promulgated by the Commissioner for the interchange of date necessary for the application of rating plans.
(a) In order to further conform administration of rate regulatory laws, the Commissioner and every insurer and the advisory organization designated by the Commissioner may exchange information and experience data with insurance supervisory officials, insurers and advisory organizations in other states and may consult with them with respect to rate making and the application of rating systems.
(a) Cooperation among advisory organizations or among advisory organizations and insurers in rate making or in other matters within the scope of this chapter is authorized, but the filings resulting from such cooperation are subject to all provisions of this chapter. The Commissioner may review such cooperative activities and practices, and if after a hearing any such activity or practice is found to violate the provisions of this chapter, a written order may be issued specifying that such activity or practice violates the provisions of this chapter, and requiring the discontinuance of such activity.
§2609. Rate filings.
(a) Each authorized insurer shall file with the Commissioner all rates, supplementary rate information, and any changes and amendments made by it for use in this State as required in §2610. An insurer may establish rates and supplementary rate information based upon the factors in §2604. An insurer may adopt by reference, with or without deviation, the prospective loss costs filed by the advisory organization or the rates and supplementary rate information filed by another insurer.
(a) An insurer may not make or issue a contract or policy of insurance under this chapter, except in accordance with the filings which are in effect for the insurer as provided in this chapter.
(a) In addition to other prohibitions in this Act, no advisory organization shall file rates, supplementary rate information, or supporting information on behalf of an insurer.
§2610. Review of insurance filings
(a) The Commissioner shall investigate and review each insurance filing under the following guidelines:
(1) The effective date of each workmen's compensation insurance filing shall be the date specified in the filing. The effective date of the filing may not be earlier than 30 days after the date the filing is received by the Commissioner, or the date of receipt of the information furnished in support of the filing if such supporting information is required by the Commissioner.
(1) Upon written application of the insurer or advisory organization, the Commissioner may authorize a filing, which the Commissioner has reviewed, to become effective before the expiration of the period described in paragraph (a)(1) of this section.
(1) A filing shall be deemed to meet the requirements of this chapter unless disapproved by the Commissioner within the period described in paragraph (a)(1) or any extension thereof.
(b) Subject to subsection (a) of this section, a workmen's compensation advisory organization shall file with the Commissioner:
(1) Workmen's compensation rates and rating plans that are limited to prospective loss costs;
(1) Each workmen's compensation policy form to be used by its members;
(2) The uniform classification plan and rules;
(3) The uniform experience rating plan and rules; and Any other information that the Commissioner requests and is otherwise entitled to receive under this chapter.
(c) Whenever a filing is not accompanied by the information required under this section, the Commissioner shall so inform the filer within ten days of the initial filing. The filing shall be deemed to be made when the required information is furnished or when the filer certifies to the Commissioner that the additional information requested by the Commissioner is not maintained or cannot be provided.
(d) If each rate in a schedule of workmen's compensation rates for specific classifications of risks filed by an insurer is not lower than the prospective loss costs contained in the schedule of workmen's compensation rates for those classifications filed by an advisory organization under subsection (b) of this section, and approved by the Commissioner, then the schedule of rates filed by the insurer shall not be subject to subsection (a) of this section but shall become effective upon filing for the purposes of §2609 of this chapter.
§2611. Improper rates: hearing.
(a) If the Commissioner finds that a rate is not in compliance with §2604, or that a rate had been set in violation of §2616 of this chapter, the Commissioner shall order that its use be discontinued for any policy issued or renewed after the date of the order, and the order may prospectively provide for premium adjustment of any such policy then In force. The order shall be issued within 30 days after the close of a hearing, if one is requested by the insurer, or within a reasonable time as fixed by the Commissioner. The order shall expire one year after its effective date unless rescinded earlier by the Commissioner.
(a) If the Commissioner disapproves a rate under subsection (a), disapproval shall take effect not less than 15 days after its order, and the last previous rate in effect for the insurer shall be reimposed for a period of one year unless the Commissioner approves a rate under subsection (d) or subsection (e) of this section.
(a) All determinations made by the Commissioner under this section shall be in accordance with accepted actuarial standards on the basis of findings of fact and conclusions of law.
(b) For a period of one year after the effective date of a disapproval order under subsection (a), no rate adopted to replace one disapproved under such order may be used until it has been filed with the Commissioner and approved within 30 days thereafter.
(a) Whenever an insurer has no legally effective rates pursuant to subsection (a), the Commissioner shall, on the insurer's request, specify interim rates for the insurer that are adequate to protect the interests of all parties. The Commissioner may order that a specified portion of the premiums be placed in a special reserve established by the insurer. When new rates become legally effective, the Commissioner shall order the reserved funds or any overcharge in the interim rates to be distributed appropriately, except that minimal adjustments may not be required.
§2612. Restrictions on certain insurers: waiting Period.
(a) The Commissioner may require that a particular insurer file any or all of its rates and supplementary rate information 30 days prior to their effective date, if the Commissioner finds after a hearing that the protection of the interests of the insurer's insureds and the public in this State requires closer supervision of its rates.
(b) Upon written application by an insurer, the Commissioner may authorize a filing, which the Commissioner has reviewed, to become effective before the expiration of the period described in subsection (a).
(c) The filing shall be approved or disapproved during the waiting period and if not disapproved before the expiration of the waiting period shall be deemed to meet the requirements of this section.
(d) Any insurer affected by the Commissioner's actions under this section may request a rehearing by the Commissioner after the expiration of 12 months from the date of the Commissioner's former order.
§2613. Delay of rates in noncompetitive market.
(a) A thirty-day waiting period may be implemented or extended under the following circumstances:
(1) After finding that the market is not competitive, under §2603, The Commissioner may adopt a rule requiring that any subsequent changes in rates or supplementary information be filed with the Commissioner at least 30 days before they become effective.
(1) The Commissioner may extend the waiting period under this section for a period not exceeding 30 additional days by written notice to the filer before the first 30-day period expires.
(1) Upon written application by an insurer or advisory organization, the Commissioner may authorize a filing, which the Commissioner has reviewed, to become effective before the expiration of the period described in paragraphs (1) or (2).
(2) The filing shall be approved or disapproved during the waiting period and if not disapproved before the expiration of the waiting period shall be deemed to meet the requirements of this section.
(b) If a rule is adopted under subsection (a), the Commissioner may require the filing of supporting data as to classes of risks or combinations thereof as the Commissioner deems necessary for the proper functioning of the rate monitoring and regulating process. The supporting data shall include:
(1) The experience and judgment of the filer, and to the extent the filer wishes or the Commissioner requires, the experience and judgment of other insurers or the advisory organization;
(2) The filer's interpretation of any statistical data relied upon;
(1) A description of the actuarial and statistical methods employed in setting the rate; and
(2) Any other relevant matters required by the Commissioner.
(c) A rule adopted under this section shall expire not more than one year after issue. The Commissioner may renew it after hearings and appropriate findings under this section.
(d) Whenever a filing is not accompanied by the information as the Commissioner has required under subsection (b) of this section, the Commissioner shall so inform the insurer within 10 days of the initial filing. The filing shall be deemed to be made when the required information is furnished.
§2614. Challenge and review of application of rating system.
(a) Each advisory organization, and every insurer subject to this chapter which makes its own rates, shall provide within this State reasonable means whereby any person aggrieved by the application of its rating system may upon that person's written request be heard in person or by the person's authorized representative to review the manner in which such rating system has been applied in connection with the insurance afforded the aggrieved person.
(b) Any party affected by the action of the advisory organization or the insurer may, within 30 days after written notice of that action, make application, in writing, for an appeal to the Commissioner, setting forth the basis for the appeal and the grounds to be relied upon by the applicant.
(a) The Commissioner shall review the application, and if the Commissioner finds that the application is made in good faith, and that it sets forth on its face grounds which reasonably justify holding a hearing, the Commissioner shall conduct a hearing held not less than 10 days after written notice to the applicant and to the advisory organization or insurer. The Commissioner, after hearing, shall affirm or reverse the action of the advisory organization or insurer.
§2615. Consent to rate
Notwithstanding any other provision of this chapter, upon the written consent of the insured, filed with and approved by the Insurance Commissioner, a rate in excess of that determined in accordance with the other provisions of this chapter may be used on any specific risk.
§2616. Acts reducing competition Prohibited.
(a) In this section, the word "insurer" includes 2 or more affiliated insurers (i) under common management, or (ii) under common controlling ownership or under other common effective legal control and in fact engaged in joint or cooperative underwriting, investment management, marketing, servicing, or administration of their business and affairs as insurers.
(b) An insurer or advisory organization may not:
(1) Monopolize or attempt to monopolize, or combine or conspire with any other person or persons, or monopolize the
business of insurance of any kind, subdivision, or class thereof;
(1) Agree with any other insurer or advisory organization to charge or adhere to any rate or rating plan other than the uniform experience rating plan or rating rule except as needed to comply with the requirements of §2606;
(1) Make an agreement with any other insurer, advisory organization, or other person to unreasonably restrain trade, or substantially lessen competition in the business of Insurance of any kind, subdivision, or class; or
(1) Make any agreement with any other insurer or advisory organization to refuse to deal with any person in connection with the sale of insurance.
(c) The fact that two or more insurers, whether or not members or subscribers of a common advisory organization, use consistently or intermittently, the same rules, rating plans, rating schedules, rating rules, policy forms, rate classifications, underwriting rules, surveys or inspections or similar materials is not sufficient in itself to support a finding that an agreement exists.
(d) An advisory organization, or member or subscriber thereof may not interfere with the right of any insurer to make its rates independently of that advisory organization or to charge rates different from the rates made by that advisory organization.
(e) Except as required under §2607, an advisory organization may not have or adopt any rule or exact any agreement, or formulate or engage in any program which would require any member, subscriber, or other insurer to:
(1) Utilize some or all of its services;
(2) Adhere to its rates, rating plan, rating systems, underwriting rules; or
(3) (3) Prevent any insurer from acting independently.
§2617. Advisory Organization
Any advisory organization in addition to other activities not prohibited, is authorized to:
(1) Develop statistical plans including class definitions.
(1) Collect statistical data from members, subscribers or any other source.
(1) Prepare and distribute pure premium rate data, adjusted for loss development and loss trending, in accordance with its statistical plan. Such data and adjustments should be in sufficient detail so as to permit insurers to modify such pure premiums based upon their own rating methods or interpretations of underlying data.
(1) Prepare and distribute manuals of rating rules and rating schedules that do not contain any rules or schedules including final rates without information outside the manuals.
(2) Distribute information that is filed with the Commissioner and open to public inspection.
(3) Conduct research and collect statistics in order to discover, identify and classify information relating to causes or prevention of losses.
(1) Prepare and file policy forms and endorsements and consult with members, subscribers and others relative to their use and application.
(1) Collect, compile and distribute past and current prices of individual insurers if such information is made available to the general public.
(1) Conduct research and collect information to determine the impact of benefit level changes on pure premium rates.
(2) Prepare and distribute rules and rating values for the uniform experience rating plan. Calculate and disseminate individual risk premium modification factors.
§2618. Residual Market Mechanism.
(a) All insurers authorized to write workmen's compensation and employers' liability insurance shall participate in a plan providing for the equitable apportionment among them of insurance which may be afforded applicants who are in good faith entitled to but who are unable to procure such insurance through ordinary methods. A residual market plan shall be submitted for the Commissioner's approval within 60 days of the effective date of this chapter. Rates for the residual market shall be filed by the advisory organization.
(b) The Commissioner may adopt retrospective rating plans for any risks Insured through residual market.
(c) The Commissioner may adopt a schedule debit plan for any risks insured through the plan that do not comply with loss-control recommendations, have frequency or severity problems, or have any exposure that is greater than average for the class.
(d) The Commissioner shall disapprove any filing that does not meet the requirements of §2605. A filing shall be deemed to meet such requirements unless disapproved by the Commissioner within 30 days after the filing is made. In reviewing a filing made pursuant to this section, the Commissioner shall have the same authority and follow the same procedures prescribed by §§2611, 2612, and 2613. The advisory organization shall make and file the plan of operation, rates, rating plans, rules, and policy forms under this section.
(e) The limitation in §2610(b)(1) shall not apply to the residual market plan filed under this section.
§2619. Penalties.
(a) The Commissioner may, upon finding that any person or organization has violated this chapter, impose a penalty of not more than $500 for each such violation. Upon finding such violation to be willful, the Commissioner may impose a penalty of not more than $1,000 for each such violation in addition to any other penalty provided by law.
(a) The Commissioner may suspend the license of any advisory organization or insurer which fails to comply with an order within the time set by the order or any extension thereof granted by the Commissioner. The Commissioner shall not so suspend a license for failure to comply with an order until time prescribed for appeal therefrom has expired or, if appealed, until such order has been affirmed. The Commissioner may determine the period of a suspension, and it shall remain in effect for such period unless modified or rescinded or until the order upon which the suspension is based is modified, rescinded, or reversed.
(c) Absent a consent decree, no penalty shall be imposed and no license shall be suspended or revoked except upon a written order of the Commissioner stating his or her findings, made after a hearing held after at least 10 days written notice to such person or organization specifying the alleged violation.
(d) Any party aggrieved by an order or decision of the Commissioner may, within 30 days after receiving the Commissioner's notice, make written request for a hearing.
§2620. Appeals from Commissioner.
Any order, decision, or act of the Commissioner under this chapter is subject to judicial review upon petition of any person aggrieved. The appeal shall be to the Court of Chancery in any county of this state. A petition for review shall be filed within 60 days from notice of the order, decision, or act. The commencement of the proceeding shall not affect enforcement or validity of the Commissioner's action unless the Court determines, after notice to the Commissioner, that a stay of enforcement until further direction of the Court will not unduly injure the interests of the public. Subsections (d) through (i) of §333 (appeal from the Commissioner) of this title shall apply to such appeals.
§2621. Transition.
Insurers and the advisory organization are not required to immediately refile rates previously implemented. Any member or subscriber of an advisory organization is authorized to continue to use all rates and deviations filed or approved for its use until the insurer makes its own filing to change its rates, either by making an independent filing or by filing and adopting the advisory organization's prospective loss costs, or modification thereof.
§2622. Severability.
If any provisions of this chapter, or the application of such provision to any person or circumstances, shall be held invalid, the remainder of this chapter, and the application of such provision to a person or circumstances other than those as to which it is held invalid, shall not be affected.
§2623 Effective Date.
This Act shall become effective three months after enactment.
Approved July 16, 1993.