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Louisiana Insurers’ Conference - PPT Presentation

Industry Trends Property amp Casualty Life Accident amp Health Fred E Karlinsky karlinskyfgtlawcom Fred E Karlinsky 2019 Louisiana Insurers Conference Shareholder CoChair Insurance Regulatory amp Transactions Practice Group ID: 784844

2019 insurers conference louisiana insurers 2019 louisiana conference insurance data amp health governance corporate insurer benefits disclosure information act

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Slide1

Louisiana Insurers’ Conference

Industry Trends – Property & Casualty, Life, Accident & Health

Fred E. Karlinsky

|

karlinskyf@gtlaw.com

Slide2

Fred E. Karlinsky

2019 Louisiana Insurers' Conference

Shareholder

Co-Chair, Insurance Regulatory & Transactions Practice Group

Greenberg Traurig, P.A.

Telephone: (954) 768-8279E-mail: KarlinskyF@GTLaw.com

Slide3

The materials in this presentation are intended to provide a general overview of the issues contained herein and are not intended nor should they be construed to provide specific legal or regulatory guidance or advice. If you have any questions or issues of a specific nature, you should consult with appropriate legal or regulatory counsel to review the specific circumstances involved.

Disclaimer

2019 Louisiana Insurers' Conference

Slide4

Agenda

Industrywide Trends

Cybersecurity & Data Privacy

InsurTech/Sandboxes

Corporate GovernanceProperty & CasualtyAssignment of Benefits (AOB)Catastrophic LossFlood Insurance

Accident and HealthPBMsOpioid CrisisLifeUse of Genetic Information Use of fitness trackers and related data NAIC Overview2019 Louisiana Insurers' Conference

Slide5

Industrywide Trends

Cybersecurity

Slide6

Risks Caused By:

using technology in your operations, or handling/collecting/storing confidential information

What are Cyber Risks?

2019 Louisiana Insurers' Conference

Slide7

Cyber Is An Evolving Risk |

Many Factors, Many Attacks

Nation State Attacks

In 2014, North Korean targeting of a media company with “wiper malware,” disabling networks for more than a week and triggering 7 class action data breach lawsuits.

RansomwareWANNACRY and PETYA. (2017) targeted the “Eternal Blue” vulnerability for a legacy Microsoft protocol. Self-proliferating capability spreads ransomware worldwide.

Industrial Control Attacks

CrashOverride (2016) Second known malware designed to disrupt physical systems. Highly adaptable to target specific industrial control systems.

Data Breach

For a decade, hackers have persistently and successfully targeted consumer data.

System Outages

Cyber attacks & system failures repeatedly create havoc for airline systems, affecting major carriers.

Dependent Business Interruption

DYN DDoS (2016) Attackers using the Marai botnet to target a DNS provider with the largest DDoS attack ever recorded, degrading cloud services and websites worldwide.

2019 Louisiana Insurers' Conference

Slide8

Latest Cybersecurity Trends and Statistics

Percentage of Denial of Service Attacks targeted large organizations

2

98

%

Median number of days from an intrusion to containment of a breach4 62

Ransomware infections have increased by

5

36%

88

%

75%

Breaches perpetrated by outsiders

2

Cyber crime costs the global economy annually up to

6

$575B

Symantec,

Internet Security Threat Report 2017

Verizon,

Data Breach Investigation Report 2017

SANS Institute,

Combatting Cyber Risks in the Supply Chain

Trustwave,

Global Security Report 2017

Symantec,

Internet Security Threat Report 2017

CSIS & McAfee,

Net Losses: Estimating the Global Cost of Cybercrime

IBM

.

Percentage of breaches at companies with less than 1,000 employees

Same 9 patterns identified in 2014

2

60%

Breaches perpetrated by insiders

2

Overall volume of malicious Android apps increased significantly

1

105

%

Breaches directly caused by unintentional actions of insiders

2

76%

Cost per Incident

7

2019 Louisiana Insurers' Conference

Slide9

Federal Approach

Regulate certain sectors and information – especially the financial markets and banking systems, where the public and trust is paramount.Health Insurance Portability and Accountability Act (HIPPA)

Protects privacy of protected health information

Separate privacy laws protect specific areas of the U.S. health-care system

Family Educational Rights and Privacy Act (FERPA)Children’s Online Privacy Protection ActEU General Data Protection Regulation (GDPR)Federal Cybersecurity Standards

2019 Louisiana Insurers' Conference

Slide10

Feb. 2017: New York DFS issues broad Cybersecurity Regulation

Oct. 2017: NAIC adopted Insurance Data Security Model LawEarly Adopters: Alabama, Connecticut, Delaware, Ohio, Michigan, Mississippi, New Hampshire, and South Carolina

June 2018: California Consumer Privacy Act (

CCPA

) passedEffective January 1, 2020Similar in many respects to GDPRInsurance Data Security & Data Privacy Standards

2019 Louisiana Insurers' Conference

Slide11

Since the California Consumer Privacy Act (

CCPA), all 50 states have introduced data privacy legislation or updated their data breach notification laws

Louisiana, South Carolina & Vermont most recent states to enact data protection legislation

Potential for national legislation: Oregon Senator and Hawaii Senator have drafted privacy and cybersecurity legislation

State Data Privacy Requirements

2019 Louisiana Insurers' Conference

Slide12

Dearth of Historical Data

Existing data often includes non-cyber lossesData often does not have useful information“Silent cyber” risk

Underwriters Must Rely More Heavily on Models to Price Cyber Risk

Pricing Challenges

2019 Louisiana Insurers' Conference

Slide13

Annual premium volume information about the Cyber insurance market is hard to come by, but in reviewing the market, it is estimated that the annual gross written premium is anywhere from $2 billion to $4 billion (2019)

Industry divided by size (gross written premium)

A limited number of very large writers, with premiums in excess of $100 million

Several carriers in the $50-100 million range

Several carriers and large managing general underwriters in the $25-50 million rangeNumerous carriers and smaller managing general underwriters in the $10-25 million rangeNumerous entities writing in the $5-10 million and $1-5 million rangeCyber Insurance Marketplace

2019 Louisiana Insurers' Conference

Slide14

Industrywide Trends

InsurTech & Regulatory Sandboxes

Slide15

States with Regulatory Sandboxes

Participating States Arizona, Kentucky, Utah, Vermont and WyomingAllows InsurTech Companies to

Gain limited access to market

Test financial products or services

Operate without certain licenses or authorizationsInsurTech & Regulatory Sandboxes

2019 Louisiana Insurers' Conference

Slide16

NAIC Innovation and Technology Task Force

Identified Anti-rebating and Unfair Trade Practice Laws as Obstacles for InsurTech companiesThe IT Task Force is Considering the Following Proposed Three-Part Test

Does value-added service or product harm an insurer’s solvency?

Does value-added service or product directly relate to the insurance policy?

Is value-added service or product offered on a nondiscriminatory basis?InsurTech & Regulatory Sandboxes

2019 Louisiana Insurers' Conference

Slide17

Industrywide Trends

Corporate Governance

Slide18

What is Corporate Governance?

Procedures and StructuresShapes Interactions

Multi-faceted Subject

Private v. Public Companies

Privately Held: Owned by private groupPublicly Held: Sold a portion to public via an IPOPublic DisclosuresCorporate Governance

2019 Louisiana Insurers' Conference

Slide19

Board Structure

Lead Independent Director or Independent Chairperson of the BoardIndependent Directors

Majority of board should be independent

Investor representative not disqualified from being independent

Look for directors with diversity of skills, perspective and experienceProper vetting of new board members is criticalCorporate Governance

2019 Louisiana Insurers' Conference

Slide20

Board Committees

Audit CommitteeIndependent Board MembersCompensation Committee

CEO + Independent Board Members

Risk Management Committee

CEO + Independent Board MembersManagement should make recommendations to board regarding committee nomineesCorporate Governance

2019 Louisiana Insurers' Conference

Slide21

Executive Officers

Good corporate governance requires management team with skill, experience and good judgment to lead company and execute strategy.Board Responsible for Assembling, Overseeing and Evaluating Executive Team

Executives Must Have Clearly-Defined Responsibilities

General Counsel Should Serve as Chief Corporate and Legal Compliance Officer

Corporate Governance

2019 Louisiana Insurers' Conference

Slide22

Boards must enhance shareholder value

Form and promote corporate identityDevelop long-term strategies to maximize profits

Environmental and Social Governance

But, insurer boards must also protect policyholder interest

Ensure proper claims-handling protocols are in placeCompliance with notice and coverage of regulatory requirementsRisk-based financial and market conduct considerationsInsurance Company Boards Have Competing Duties

2019 Louisiana Insurers' Conference

Slide23

Corporate Governance Annual Disclosure (

CGAD)Determining which entity reports

What should be included in

CGAD

Lead State FilingNeed to establish and document organization and proceduresCorporate Governance Annual Disclosure

2019 Louisiana Insurers' Conference

Slide24

Review and Oversight

Insurance Commissioners take a closer look at an insurer or insurance group’s corporate governanceAnnual Disclosure Filing

Who reports?

Controlling Party

Holding CompanyLegal Entity/Insurance CompanyCorporate Governance Annual Disclosure

2019 Louisiana Insurers' Conference

Slide25

CGAD

must be detailed and addressInsurer’s corporate governance framework and structurePolicies and practices of its board of directors and committees

Policies and practices directing senior management

Internal oversight procedures

Corporate Governance Annual Disclosure | Content

2019 Louisiana Insurers' Conference

Slide26

NAIC expects all U.S. jurisdictions to adopt

CGADAs of February, 2019Over half states have enacted the

CGAD

Model Law

20 states have enacted the CGAD Model Regulation Issues with sporadic adoption of model regulations from a compliance perspectiveWill there be an impact?What should a company do?Corporate Governance Annual Disclosure | Uniform Adoption

2019 Louisiana Insurers' Conference

Slide27

Corporate Governance Annual Disclosure | Model Act Adoption

2019 Louisiana Insurers' Conference

Slide28

Corporate Governance Annual Disclosure | Model Act Adoption

2019 Louisiana Insurers' Conference

Slide29

Corporate Governance Annual Disclosure | Florida

Florida passed

CGAD

– signed by then Governor Rick Scott on April 8, 2016

Initial Disclosures submitted by December 31, 2018Subsequent submissions by June 1st of each yearFlorida Office of Insurance Regulation could require a CGAD earlierUnique Circumstances Insurer deemed to be in hazardous financial conditionIf insurer member of insurer group in which Florida is lead stateBest interests of the state

2019 Louisiana Insurers' Conference

Slide30

Corporate Governance Annual Disclosure | Louisiana

Aligns more closely with NAIC Model Law than Florida’s version

Disclosure required of all domestic insurers

Lead state filing for insurer member of insurance group

What about when there are multiple insurers in group with multiple lead states?Must consider confidentiality issuesInsurance Commissioner authorized to request CGAD

2019 Louisiana Insurers' Conference

Slide31

Property & Casualty

Assignment of Benefits

Slide32

AOB – A contractual agreement between an insured and a contractor pursuant to which the insured assigns certain rights under the policy

AOBs are common in connection with health insuranceInsureds assign rights/benefits to preapproved health providers

Health providers perform services and bill insurers directly

AOBs now being used in homeowners insurance and auto glass claims

Third-party contractors perform work and bill insurers directlyAssignment of Benefits

2019 Louisiana Insurers' Conference

Slide33

Why do policyholders enter into an AOB?

Required by contractor before commencing workCannot afford up-front repair costs

To get necessary repairs completed quickly

To avoid having to file a claim with the insurer

However, AOBs can be harmful to insuredsAssignment of Benefits

2019 Louisiana Insurers' Conference

Slide34

Florida’s unique legal environment makes state ripe for AOB Abuse

Key factorsOne-way attorneys’ feesNo insurer consent required for AOB

Unique landscape encourages unnecessary expense and results in higher premiums for all

Assignment of Benefits

2019 Louisiana Insurers' Conference

Slide35

HB 7065 – Signed by Governor Ron DeSantis on May 23, 2019

Defines “assignment agreement” & establishes requirementsAllows assignor to rescind within 7 days of execution, at least 30 days after work has commenced, or at least 30 days after execution if agreement does not contain commencement date and assignee has not begun substantial work

Requires assignee to provide the insurer with a copy of the agreement within 3 business days after execution

Limits AOBs in emergency situations to $3000 or 1% of coverage A

Assignment of Benefits | Florida Passes AOB Reform

2019 Louisiana Insurers' Conference

Slide36

Requires AOB to contain notice to assignor that they are waiving certain rights

Requires assignee to indemnify the assignor, including against the filing of liens Ensures assignee has a duty to maintain records, cooperate in investigations, and deliver AOB to the insurer

Requires assignees to participate in examinations under oath (EOMs) and alternative dispute resolution mechanisms

Assignment of Benefits |

Florida Passes AOB Reform

2019 Louisiana Insurers' Conference

Slide37

Requires notice of suit to be delivered 10 business days prior filing

Requires insurer to respond to the notice in writing within 10 days The one-way attorney fee provision no longer applies to the assignee

Offer less than 25% of disputed amount

insurer entitled to attorney feesOffer at least 25% but less than 50%  neither party entitled to attorney fees If offer is at least 50%  assignee entitled to attorney fees Key Final Change: HB 337 provision made attorney fee provision effective upon becoming law Assignment of Benefits | Florida Passes AOB Reform

2019 Louisiana Insurers' Conference

Slide38

Requires insurers to

make available a policy restricting the assignment of post-loss benefitsRequires insurers to report detailed claims data to OIR annually beginning January 30, 2022

HB 7065 took effect on July 1, 2019

Attorneys’ fee provisions took effect immediately

Assignment of Benefits | Florida Passes AOB Reform

2019 Louisiana Insurers' Conference

Slide39

Property & Casualty

Catastrophic Risk & Flood Insurance

Slide40

Hurricane Michael hit Florida panhandle as a Category 5 storm, October 10, 2018

Over $6.9 billion in damage claimsHurricane Dorian - Strongest tropical cyclone to hit Bahamas

Landfall in North Carolina as a category 1 storm on September 1, 2019

Risk Management Solutions: U.S. insured losses between $

500m and $1.5bAugust 2019, CA Insurance Commissioner released data showing insurance harder to find as a result of wildfiresOver $12 billion in claims related to Camp, Woolsey & Hill FiresCatastrophic Risk

2019 Louisiana Insurers' Conference

Slide41

Most Common Natural Disaster Risk in the United States

Effects Amplified by Climate ChangeCost of Events Becoming More Costly

$200 million in 2017

Debt to National Treasury was over $20 billion in 2018

Biggert-Waters Flood Insurance Reform Act of 2012 (BW-12)Increased RatesCreated Private MarketPolitically UnpopularFlood Insurance

2019 Louisiana Insurers' Conference

Slide42

NFIP Still Holds Majority of Polices

$4.3 billion in Premium in 2016 from 5 million PoliciesSurplus Lines Dominate Private MarketPrivate Flood Insurance Market Development Act of 2017, H.R. 1422

Private Flood Concerns:

Cherry Picking

Agent Commissions State Guarantee FundsFlood Insurance

2019 Louisiana Insurers' Conference

Slide43

Accident & Health

Pharmacy Benefits Managers

Slide44

Rising Drug Costs Have Put a Spotlight on

PBMsRecent Federal Legislation

Banning of Gag Orders

Know the Lowest Price Act of 2018

Patient Right to Know Drug Prices ActRecent State Legislation Drug Affordability BoardsIncreased Price Transparency Pharmacy Benefits Managers

2019 Louisiana Insurers' Conference

Slide45

NAIC Subgroup Created

NAIC Health Carrier Prescription Drug Benefit Management Model Act #22 and Network Adequacy Model Act #74U.S. Department of Health and Human Services (HHS) and U.S. Food and Drug Administration (FDA) guidelines for safe importation of drugs originally intended for foreign markets

Priority for President Trump

Pharmacy Benefits Managers

2019 Louisiana Insurers' Conference

Slide46

Accident & Health

Opioid Epidemic

Slide47

Over 2 million Americans Suffer from Opioid Addiction

OxyContin Introduced in 1996Purdue Pharma Bankruptcy

Settling Litigation via Bankruptcy

Opioid Epidemic

2019 Louisiana Insurers' Conference

Slide48

New York Department of Financial Services has subpoenaed several opioid manufacturers, insurers, and

PBMsPBMs

and the Opioid Epidemic

Ruling in Texas

Centers for Disease Control (CDC) Guidelines Due to their proximity to the prescribing of medicine more cities and counties are looking at PBMs for answersOpioid Epidemic

2019 Louisiana Insurers' Conference

Slide49

Life Insurance

Genetic Information

Slide50

Access to DNA Information has Proliferated

Genetic information covered under HIPAA Genetic Information Nondiscrimination Act (GINA)

Prevents health insurers from denying coverage or increasing rates based on genetic predisposition to various health conditions

Can do so once you show symptoms

Does not apply to life, long-term care, or disability insuranceUse of Genetic Information

2019 Louisiana Insurers' Conference

Slide51

Life Insurance

Fitness Trackers & Data

Slide52

Wearable devices with technology that collects statistics related to physical activity, vital signs and location

E.g., Fitbit, Apple Watch, and Xiaomi

Insurers see this as a way to promote a healthier lifestyle and engage their clients on a long-term basis

John Hancock only using Interactive Devices for Life Insurance

Use of Fitness Trackers and Related Data

2019 Louisiana Insurers' Conference

Slide53

Insurers see this as a way to promote a healthier lifestyle and engage their clients on a long-term basis

Increased Insurer InteractionPrivacy concerns around Protected Health Information (HIPAA)

Cyber Attacks

Reliability of Data and Devices

Use of Fitness Trackers and Related Data

2019 Louisiana Insurers' Conference

Slide54

The National Association of Insurance Commissioner

Slide55

Key Priorities

Long-Term Care InsuranceHealth Insurance

Data, Innovation and Cyber

“State Ahead” Themes and Goals

Theme I: Safe, Solvent and Stable MarketsTheme II: Consumer Protection and EducationTheme III: Superior Member Services and ResourcesNAIC Update

2019 Louisiana Insurers' Conference

Slide56

Chair: Commissioner Doug

Ommen (IA)

Mission of Life Insurance and Annuities (A) Committee: consider issues relating to life insurance and annuities and review new life insurance products

Notable sub-groups

Life Actuarial Task Force: identifies, investigates, and develops solutions to actuarial problems in the life insurance industryAnnuity Disclosure Working Group: reviews and revise required disclosures to better inform consumers in light of recent product innovationsLife Insurance and Annuities (A) Committee

2019 Louisiana Insurers' Conference

Slide57

Chair: Commissioner Jessica Altman (PA)

Mission of Health Insurance and Managed Care (B) Committee: Consider issues relating to all aspects of health insurance

Notable sub-groups

Regulatory Framework Task Force: (i) develops NAIC model acts and regulations for state health care initiatives; and (ii) considers policy issues affecting state health insurance regulation

Long-Term Care Insurance Task Force: Coordinates all aspects of the NAIC’s work regarding the LTCI marketHealth Insurance and Managed Care (B) Committee

2019 Louisiana Insurers' Conference

Slide58

Chair: Superintendent Elizabeth Dwyer (RI)

The mission of Property and Casualty Insurance (C) CommitteeMonitor and respond to problems associated with products, delivery and cost in P&C insurance market and surplus lines market as they operate with respect to individual persons and businesses

Monitor and respond to problems associated with financial reporting matters for P&C insurers that are of interest to regulatory actuaries and analysts

Monitor and respond to problems associated with financial aspects of surplus lines market

Property and Casualty Insurance (C) Committee

2019 Louisiana Insurers' Conference

Slide59

Contact Information

Fred Karlinsky

Shareholder and Co-Chair, Insurance Regulatory & Transactions Practice

Greenberg

Traurig, P.A.(954) 768-8278Karlinskyf@gtlaw.com