Establishes the "Interstate insurance product regulation compact" to regulate certain insurance products among member states and to promote and protect the interest of consumers of individual and group annuity, life insurance, disability income and long term care insurance products.
STATE OF NEW YORK
________________________________________________________________________
6191
2009-2010 Regular Sessions
IN ASSEMBLY
February 26, 2009
___________
Introduced by M. of A. TITUS, ROBINSON, WEISENBERG -- read once and
referred to the Committee on Insurance
AN ACT to amend the insurance law, in relation to establishing the
interstate insurance product regulation compact to regulate certain
insurance products
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings and intent. An interstate compact is
2 an agreement between states that permits states to cooperate on multi-
3 state or national issues while retaining state control. There are over
4 two hundred interstate compacts currently in existence and every state
5 belongs to at least fourteen such compacts. The interstate insurance
6 product regulation compact is designed to streamline state product regu-
7 lation systems to allow insurers to more quickly market certain types of
8 insurance products nationally and to reduce the number of variations of
9 the same product that a company must produce to meet specific product
10 standards. The compact would cover individual and group products for
11 life insurance, annuities, disability income and long-term care insur-
12 ance. The state of New York seeks to join with other states and estab-
13 lish the interstate insurance product regulation compact and become a
14 member of the interstate insurance product regulation commission.
15 § 2. The insurance law is amended by adding a new article 88 to read
16 as follows:
17 ARTICLE 88
18 INTERSTATE INSURANCE PRODUCT REGULATION COMPACT
19 Section 8801. Short title.
20 8802. Purpose.
21 8803. Definitions.
22 8804. Establishment of the commission and venue.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07717-01-9
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1 8805. Powers of the commission.
2 8806. Organization of the commission.
3 8807. Meetings and acts of the commission.
4 8808. Rules and operating procedures; rule making functions of
5 the commission and opting out of uniform standards.
6 8809. Commission records and enforcement.
7 8810. Dispute resolution.
8 8811. Product filing and approval.
9 8812. Review of commission decisions regarding filings.
10 8813. Finance.
11 8814. Compacting states, effective date and amendment.
12 8815. Withdrawal, default and termination.
13 8816. Severability and construction.
14 8817. Binding effect of compact and other laws.
15 § 8801. Short title. This article shall be known and may be cited as
16 the "interstate insurance product regulation compact".
17 § 8802. Purpose. The purposes of this compact are, through means of
18 joint and cooperative action among the compacting states:
19 (a) to promote and protect the interest of consumers of individual and
20 group annuity, life insurance, disability income and long-term care
21 insurance products;
22 (b) to develop uniform standards for insurance products covered under
23 the compact;
24 (c) to establish a central clearinghouse to receive and provide prompt
25 review of insurance products covered under the compact and, in certain
26 cases, advertisements related thereto, submitted by insurers authorized
27 to do business in one or more compacting states;
28 (d) to give appropriate regulatory approval to those product filings
29 and advertisements satisfying the applicable uniform standard;
30 (e) to improve coordination of regulatory resources and expertise
31 between state insurance departments regarding the setting of uniform
32 standards and review of insurance products covered under the compact;
33 (f) to create the interstate insurance product regulation commission;
34 and
35 (g) to perform such other related functions as may be consistent with
36 the state regulation of the business of insurance.
37 § 8803. Definitions. As used in this article:
38 (a) "Advertisement" means any material designed to create public
39 interest in a product, or induce the public to purchase, increase, modi-
40 fy, reinstate, borrow on, surrender, replace or retain a policy, as more
41 specifically defined in the rules and operating procedures of the
42 commission.
43 (b) "By-laws" mean those by-laws established by the commission for its
44 governance or for directing or controlling the commission's actions or
45 conduct.
46 (c) "Compacting state" means any state which has enacted this compact
47 legislation and which has not withdrawn or been terminated pursuant to
48 section eight thousand eight hundred fifteen of this article.
49 (d) "Commission" means the "Interstate insurance product regulation
50 commission" established by the compact.
51 (e) "Commissioner" means the chief insurance regulatory official of a
52 state including, but not limited to commissioner, superintendent, direc-
53 tor or administrator.
54 (f) "Domiciliary state" means the state in which an insurer is incor-
55 porated or organized or, in the case of an alien insurer, its state of
56 entry.
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1 (g) "Insurer" means any entity licensed by a state to issue contracts
2 of insurance for any of the lines of insurance covered by this article.
3 (h) "Member" means the person, or his or her designee, chosen by a
4 compacting state for service on the commission.
5 (i) "Non-compacting state" means any state which is not at the time a
6 compacting state.
7 (j) "Operating procedures" mean procedures promulgated by the commis-
8 sion implementing a rule, uniform standard or a provision of this
9 compact.
10 (k) "Product" means the form of the contract, policy application,
11 endorsements, certificate forms, evidence of coverage forms and related
12 forms for an individual or group annuity, life insurance, disability
13 income or long-term care insurance product, which an insurer is author-
14 ized to issue.
15 (l) "Rule" means a statement of general or particular applicability
16 and future effect promulgated by the commission, including a uniform
17 standard developed pursuant to section eight thousand eight hundred
18 eight of this article, designed to implement, interpret, or prescribe
19 law or policy or describing the organization, procedure, or practice
20 requirements of the commission, which shall have the force and effect of
21 law in the compacting states.
22 (m) "State" means any state, district or territory of the United
23 States of America.
24 (n) "Third-party filer" means an entity that submits a product filing
25 to the commission on behalf of an insurer.
26 (o) "Uniform standard" means a standard adopted by the commission for
27 a product line, pursuant to section eight thousand eight hundred eight
28 of this article and shall include all of the product requirements in
29 aggregate; provided, that each uniform standard shall be construed,
30 whether express or implied, to prohibit the use of any inconsistent,
31 misleading or ambiguous provisions in a product and the form of such
32 product made available to the public shall not be unfair, inequitable or
33 against public policy as determined by the commission.
34 § 8804. Establishment of the commission and venue. (a) The compacting
35 states hereby create and establish a joint public agency known as the
36 "Interstate insurance product regulation commission". Pursuant to
37 section eight thousand eight hundred eight of this article, the commis-
38 sion shall have the power to develop uniform standards for product
39 lines, receive and provide prompt review of products filed therewith,
40 and give approval to those product filings satisfying applicable uniform
41 standards; provided, however, that it is not intended for the commission
42 to be the exclusive entity for receipt and review of insurance product
43 filings. Nothing in this section shall prohibit any insurer from filing
44 its product in any state wherein such insurer is licensed to conduct the
45 business of insurance and such filing shall be subject to the laws of
46 the state where filed.
47 (b) The commission is a body corporate and politic, and an instrumen-
48 tality of the compacting states.
49 (c) The commission is a not-for-profit entity, separate and distinct
50 from the individual compacting states.
51 (d) The commission is solely responsible for its liabilities except as
52 otherwise specifically provided in this compact.
53 (e) Venue in proper and judicial proceedings by or against the commis-
54 sion shall be brought solely and exclusively in a court of competent
55 jurisdiction where the principal office of the commission is located.
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1 § 8805. Powers of the commission. The commission shall have the
2 following powers:
3 (a) to promulgate rules, pursuant to section eight thousand eight
4 hundred eight of this article, which shall have the force and effect of
5 law and shall be binding in the compacting states to the extent and in
6 the manner provided in this article;
7 (b) to exercise its rule making authority and establish reasonable
8 uniform standards for products covered under the compact, and advertise-
9 ment related thereto, which shall have the force and effect of law and
10 shall be binding in the compacting states, but only for such products
11 filed with the commission; provided, however, that a compacting state
12 shall have the right to opt out of such uniform standard pursuant to
13 section eight thousand eight hundred eight of this article to the extent
14 and in the manner provided in this article, and provided further that
15 any uniform standard established by the commissioner for long-term care
16 insurance products may provide the same or greater protections for
17 consumers as, but shall not provide less than, those protections set
18 forth in the National Association of Insurance Commissioners' (herein-
19 after referred to as the "NAIC") Long-Term Care Insurance Model Act and
20 Long-Term Care Insurance Model Regulation, respectively, adopted as of
21 2001. The commission shall consider whether any subsequent amendments to
22 the NAIC Long-Term Care Insurance Model Act or Long-Term Care Insurance
23 Model Regulation adopted by the NAIC require amending of the uniform
24 standards established by the commission for long-term insurance
25 products;
26 (c) to receive and review in an expeditious manner products filed with
27 the commission, including rate filings for disability income and long-
28 term care insurance products, and give approval of those products and
29 rate filings that satisfy the applicable uniform standard, where such
30 approval shall have the force and effect of law and be binding on the
31 compacting states to the extent and in the manner provided in the
32 compact;
33 (d) to receive and review in an expeditious manner advertisement
34 relating to long-term care insurance products for which uniform stand-
35 ards have been adopted by the commission, and give approval of such
36 advertisement that satisfies the applicable uniform standard. For any
37 product covered under this article, other than long-term care insurance
38 products, the commission shall have the authority to require an insurer
39 to submit all or any part of its advertisement with respect to that
40 product for review or approval prior to use if the commission determines
41 that the nature of the product is such that an advertisement of the
42 product could have the capacity or tendency to mislead the public. The
43 actions of the commission as provided in this section shall have the
44 force and effect of law and shall be binding in the compacting states to
45 the extent and in the manner provided in the compact;
46 (e) to exercise its rule making authority and designate products and
47 advertisement that may be subject to a self-certification process with-
48 out the need for prior approval by the commission;
49 (f) to promulgate operating procedures, pursuant to section eight
50 thousand eight hundred eight of this article, which shall be binding in
51 the compacting states to the extent and in the manner provided in the
52 compact;
53 (g) to bring and prosecute legal proceedings or actions in its name as
54 the commission; provided, that the standing of any state insurance
55 department to sue or be sued under applicable law shall not be affected;
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1 (h) to issue subpoenas requiring the attendance and testimony of
2 witnesses and the production of evidence;
3 (i) to establish and maintain offices;
4 (j) to purchase and maintain insurance and bonds;
5 (k) to borrow, accept or contract for services of personnel, includ-
6 ing, but not limited to, employees of a compacting state;
7 (l) to hire employees, professionals or specialists, and elect or
8 appoint officers, and to fix their compensation, define their duties and
9 give them appropriate authority to carry out the purposes of the
10 compact, and determine their qualifications; and to establish the
11 commission's personnel policies and programs relating to, among other
12 things, conflicts of interest, rates of compensation and qualifications
13 of personnel;
14 (m) to accept any and all appropriate donations and grants of money,
15 equipment, supplies, materials and services, and to receive, utilize and
16 dispose of the same; provided that at all times the commission shall
17 strive to avoid any appearance of impropriety;
18 (n) to lease, purchase, accept appropriate gifts or donations of, or
19 otherwise to own, hold, improve or use, any property, real, personal or
20 mixed; provided that at all times the commission shall strive to avoid
21 any appearance of impropriety;
22 (o) to sell, convey, mortgage, pledge, lease, exchange, abandon or
23 otherwise dispose of any property, real, personal or mixed;
24 (p) to remit filing fees to compacting states as may be set forth in
25 the by-laws, rules or operating procedures;
26 (q) to enforce compliance by compacting states with rules, uniform
27 standards, operating procedures and by-laws;
28 (r) to provide for dispute resolution among compacting states;
29 (s) to advise compacting states on issues relating to insurers domi-
30 ciled or doing business in non-compacting jurisdictions, consistent with
31 the purposes of the compact;
32 (t) to provide advice and training to those personnel in state insur-
33 ance departments responsible for product review, and to be a resource
34 for state insurance departments;
35 (u) to establish a budget and make expenditures;
36 (v) to borrow money;
37 (w) to appoint committees, including advisory committees comprising
38 members, state insurance regulators, state legislators or their repre-
39 sentatives, insurance industry and consumer representatives, and such
40 other interested persons as may be designated in the by-laws;
41 (x) to provide and receive information from, and to cooperate with law
42 enforcement agencies;
43 (y) to adopt and use a corporate seal; and
44 (z) to perform such other functions as may be necessary or appropriate
45 to achieve the purposes of this compact consistent with the state regu-
46 lation of the business of insurance.
47 § 8806. Organization of the commission. (a) Each compacting state
48 shall have and be limited to one member. The superintendent, or his or
49 her designated representative, shall be New York's member of such
50 commission. Each member shall be qualified to serve in such capacity
51 pursuant to applicable law of the compacting state. Any member may be
52 removed or suspended from office as provided by the law of the state
53 from which he or she shall be appointed. Any vacancy occurring in the
54 commission shall be filled in accordance with the laws of the compacting
55 state wherein such vacancy exists. Nothing herein shall be construed to
A. 6191 6
1 affect the manner in which a compacting state determines the election or
2 appointment and qualification of its own commissioner.
3 (b) Each member shall be entitled to one vote and shall have an oppor-
4 tunity to participate in the governance of the commission in accordance
5 with the by-laws. Notwithstanding any provision of this article to the
6 contrary, no action of the commission with respect to the promulgation
7 of a uniform standard shall be effective unless two-thirds of the
8 members vote in favor thereof.
9 (c) The commission shall, by a majority of the members, prescribe
10 by-laws to govern its conduct as may be necessary or appropriate to
11 carry out the purposes, and exercise the powers, of the compact, includ-
12 ing, but not limited to:
13 (1) establishing the fiscal year of the commission;
14 (2) providing reasonable procedures for holding meetings of the
15 management committee;
16 (3) providing reasonable standards and procedures for the establish-
17 ment of other committees, and governing any general or specific deleg-
18 ation of any authority or function of the commission;
19 (4) providing reasonable procedures for calling and conducting meet-
20 ings of the commission that consist of a majority of commission members,
21 ensuring reasonable advance notice of each such meeting, and providing
22 for the right of citizens to attend each such meeting with enumerated
23 exceptions designed to protect the public's interest, the privacy of
24 individuals and insurers' proprietary information, including trade
25 secrets. The commission may meet in camera only after a majority of the
26 entire membership votes to close a meeting in toto or in part. As soon
27 as practicable, the commission must make public a copy of the vote to
28 close the meeting revealing the vote of each member with no proxy votes
29 allowed, and votes taken during such meeting;
30 (5) establishing the titles, duties and authority and reasonable
31 procedures for the election of the officers of the commission;
32 (6) providing reasonable standards and procedures for the establish-
33 ment of the personnel policies and programs of the commission. Notwith-
34 standing any civil service or other similar laws of any compacting
35 state, the by-laws shall exclusively govern the personnel policies and
36 programs of the commission;
37 (7) promulgating a code of ethics to address permissible and prohibit-
38 ed activities of commission members and employees; and
39 (8) providing a mechanism for winding up the operations of the commis-
40 sion and the equitable disposition of any surplus funds that may exist
41 after the termination of the compact after the payment and/or reserving
42 of all of its debts and obligations.
43 (d) The commission shall publish its by-laws in a convenient form and
44 file a copy thereof and a copy of any amendment thereto, with the appro-
45 priate agency or officer in each of the compacting states.
46 (e) A management committee comprising no more than fourteen members
47 shall be established as follows:
48 (1) one member from each of the six compacting states with the largest
49 premium volume for individual and group annuities, life, disability
50 income and long-term care insurance products, determined from the
51 records of the NAIC as of December thirty-first of the prior year;
52 (2) four members from those compacting states with at least two
53 percent of the market based on the premium volume described in paragraph
54 one of this subsection, other than six compacting states with the larg-
55 est premium volume, selected on a rotating basis as provided in the
56 by-laws; and
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1 (3) four members from those compacting states with less than two
2 percent of the market, based on the premium volume described in para-
3 graph one of this subsection, with one selected from each of the four
4 zone regions of the NAIC as provided in the by-laws.
5 (f) The management committee shall have such authority and duties as
6 may be set forth in the by-laws, including but not limited to:
7 (1) managing the affairs of the commission in a manner consistent with
8 the by-laws and purposes of the commission;
9 (2) establishing and overseeing an organizational structure within,
10 and appropriate procedures for, the commission to provide for the
11 creation of uniform standards and other rules, receipt and review of
12 product filings, administrative and technical support functions, review
13 of decisions regarding the disapproval of a product filing, and the
14 review of elections made by a compacting state to opt out of a uniform
15 standard; provided that a uniform standard shall not be submitted to the
16 compacting states for adoption unless approved by two-thirds of the
17 members of the management committee;
18 (3) overseeing the offices of the commission; and
19 (4) planning, implementing, and coordinating communications and activ-
20 ities with other state, federal and local government organizations in
21 order to advance the goals of the commission.
22 (g) The commission shall elect annually officers from the management
23 committee, with each having such authority and duties, as may be speci-
24 fied in the by-laws.
25 (h) The management committee may, subject to the approval of the
26 commission, appoint or retain an executive director for such period,
27 upon such terms and conditions and for such compensation as the commis-
28 sion may deem appropriate. The executive director shall serve as secre-
29 tary to the commission, but shall not be a member of the commission. The
30 executive director shall hire and supervise such other staff as may be
31 authorized by the commission.
32 (i) A legislative committee comprising state legislators or their
33 designees shall be established to monitor the operations of, and make
34 recommendations to, the commission; provided that the manner of
35 selection and term of any legislative committee member shall be as set
36 forth in the by-laws. Prior to the adoption by the commission of any
37 uniform standard, revision to the by-laws, annual budget or other
38 significant matter as may be provided in the by-laws, the management
39 committee shall consult with and report to the legislative committee.
40 (j) The commission shall establish two advisory committees, one of
41 which shall comprise consumer representatives independent of the insur-
42 ance industry and the other comprising insurance industry represen-
43 tatives.
44 (k) The commission may establish additional advisory committees as its
45 by-laws may provide for the carrying out of its functions.
46 (l) The commission shall maintain its corporate books and records in
47 accordance with the by-laws.
48 (m) The members, officers, executive director, employees and represen-
49 tatives of the commission shall be immune from suit and liability,
50 either personally or in their official capacity, for any claim for
51 damage to or loss of property or personal injury or other civil liabil-
52 ity caused by or arising out of any actual or alleged act, error or
53 omission that occurred, or that such person had a reasonable basis for
54 believing occurred within the scope of commission employment, duties or
55 responsibilities; provided, that nothing in this section shall be
56 construed to protect any such person from suit and/or liability for any
A. 6191 8
1 damage, loss, injury or liability caused by the intentional or willful
2 and wanton misconduct of that person.
3 (n) The commission shall defend any member, officer, executive direc-
4 tor, employee or representative of the commission in any civil action
5 seeking to impose liability arising out of any actual or alleged act,
6 error or omission that occurred within the scope of commission employ-
7 ment, duties or responsibilities, or that the defendant had a reasonable
8 basis for believing occurred within the scope of commission employment,
9 duties or responsibilities; provided, that nothing in this section shall
10 be construed to prohibit that person from retaining his or her own coun-
11 sel; and provided further, that the actual or alleged act, error or
12 omission did not result from that person's intentional or willful and
13 wanton misconduct.
14 (o) The commission shall indemnify and hold harmless any member, offi-
15 cer, executive director, employee or representative of the commission
16 for the amount of any settlement or judgment obtained against such
17 persons arising out of any actual or alleged act, error or omission that
18 occurred within the scope of commission employment, duties or responsi-
19 bilities, or that such person had a reasonable basis for believing
20 occurred within the scope of commission employment, duties or responsi-
21 bilities, provided, that the actual or alleged act, error or omission
22 did not result from the intentional or willful and wanton misconduct of
23 any such person.
24 § 8807. Meetings and acts of the commission. (a) The commission shall
25 meet and take such actions as are consistent with the provisions of this
26 compact and the by-laws.
27 (b) Each member of the commission shall have the right and power to
28 cast a vote to which that compacting state is entitled and to partic-
29 ipate in the business and affairs of the commission. A member shall vote
30 in person or by such other means as provided in the by-laws. The by-laws
31 may provide for members' participation in meetings by telephone or other
32 means of communication.
33 (c) The commission shall meet at least once during each calendar year.
34 Additional meetings shall be held as set forth in the by-laws.
35 § 8808. Rules and operating procedures; rule making functions of the
36 commission and opting out of uniform standards. (a) The commission shall
37 promulgate reasonable rules, including uniform standards and operating
38 procedures, in order to effectively and efficiently achieve the purposes
39 of the compact. Notwithstanding the foregoing, in the event the commis-
40 sion exercises its rule making authority in a manner that is beyond the
41 scope of the purposes of this article, or the powers granted in this
42 section, then such action by the commission shall be invalid and have no
43 force and effect.
44 (b) Rules and operating procedures shall be made pursuant to a rule
45 making process that conforms to the model state administrative procedure
46 act of 1981 as amended, as may be appropriate to the operations of the
47 commission. Before the commission adopts a uniform standard, the commis-
48 sion shall give written notice to the relevant state legislative commit-
49 tee in each compacting state responsible for insurance issues of its
50 intention to adopt such uniform standard. The commission in adopting a
51 uniform standard shall consider fully all submitted materials and issue
52 a concise explanation of its decision.
53 (c) A uniform standard shall become effective ninety days after its
54 promulgation by the commission or such later date as the commission may
55 determine; provided, however, that a compacting state may opt out of a
56 uniform standard as provided in this article. "Opt out" shall be defined
A. 6191 9
1 as any action by a compacting state to decline to adopt or participate
2 in a promulgated uniform standard. All other rules and operating proce-
3 dures, and amendments thereto, shall become effective as of the date
4 specified in each rule, operating procedure or amendment.
5 (d) A compacting state may opt out of a uniform standard, either by
6 legislation or regulation duly promulgated by the insurance department
7 under the compacting state's administrative procedure act. If a compact-
8 ing state elects to opt out of a uniform standard by regulation, it must
9 give written notice to the commission no later than ten business days
10 after the later of the uniform standard is promulgated or at the time
11 the state becomes a compacting state, and find that the uniform standard
12 does not provide reasonable protections to the citizens of the state
13 given the conditions in the state. The commissioner shall make specific
14 findings of fact and conclusions of law, based on a preponderance of the
15 evidence, detailing the conditions in the state which warrant a depar-
16 ture from the uniform standard and determining that the uniform standard
17 would not reasonably protect the citizens of the state. The commissioner
18 must consider and balance the following factors and find that the condi-
19 tions in the state and needs of the citizens of the state outweigh:
20 (1) the intent of the legislature to participate in, and the benefits
21 of, an interstate agreement to establish national uniform consumer
22 protections for the products subject to this article; and
23 (2) the presumption that a uniform standard adopted by the commission
24 provides reasonable protections to consumers of the relevant product.
25 Notwithstanding the foregoing, a compacting state may, at the time of
26 its enactment of the compact, prospectively opt out of all uniform stan-
27 dards involving the long-term care insurance products by expressly
28 providing for such opt out in the enacted compact, and such opt out
29 shall not be treated as a material variance in the offer or acceptance
30 of any state to participate in the compact. Such an opt out shall be
31 effective at the time of enactment of the compact by the compacting
32 state and shall apply to all existing uniform standards involving long-
33 term care insurance products and those subsequently promulgated.
34 (e) If a compacting state elects to opt out of a uniform standard, the
35 uniform standard shall remain applicable in the compacting state elect-
36 ing to opt out until such time the opt out legislation is enacted into
37 law or the regulation opting out becomes effective.
38 (f) Once the opt out of a uniform standard by a compacting state
39 becomes effective as provided under the laws of that state, the uniform
40 standard shall have no further force and effect in that state unless and
41 until the legislation or regulation implementing the opt out is repealed
42 or otherwise becomes ineffective under the laws of the state. If a
43 compacting state opts out of a uniform standard after the uniform stand-
44 ard has been made effective in that state, the opt out shall have the
45 same prospective effect as provided under section eight thousand eight
46 hundred fifteen of this article for withdrawals.
47 (g) If a compacting state has formally initiated the process of opting
48 out of a uniform standard by regulation, and while the regulatory opt
49 out is pending, the compacting state may petition the commission, at
50 least fifteen days before the effective date of the uniform standard, to
51 stay the effectiveness of the uniform standard in that state. The
52 commission may grant a stay if it determines the regulatory opt out is
53 being pursued in a reasonable manner and there is a likelihood of
54 success. If a stay is granted or extended by the commission, the stay or
55 extension thereof may postpone the effective date by up to ninety days,
56 unless affirmatively extended by the commission; provided however, a
A. 6191 10
1 stay may not be permitted to remain in effect for more than one year
2 unless the compacting state can show extraordinary circumstances which
3 warrant a continuance of the stay including, but not limited to, the
4 existence of a legal challenge which prevents the compacting state from
5 opting out. A stay may be terminated by the commission upon notice that
6 the rule making process has been terminated.
7 (h) Not later than thirty days after a rule or operating procedure is
8 promulgated, any person may file a petition for judicial review of the
9 rule or operating procedure; provided, however, that the filing of such
10 a petition shall not stay or otherwise prevent the rule or operating
11 procedure from becoming effective unless the court finds that the peti-
12 tioner has a substantial likelihood of success. The court shall give
13 deference to the actions of the commission consistent with applicable
14 law and shall not find the rule or operating procedure to be unlawful if
15 the rule or operating procedure represents a reasonable exercise of the
16 commission's authority.
17 § 8809. Commission records and enforcement. (a) The commission shall
18 promulgate rules establishing conditions and procedures for public
19 inspection and copying of its information and official records, except
20 such information and records involving the privacy of individuals and
21 insurers' trade secrets. The commission may promulgate additional rules
22 under which it may make available to federal and state agencies, includ-
23 ing law enforcement agencies, records and information otherwise exempt
24 from disclosure, and may enter into agreements with such agencies to
25 receive or exchange information or records subject to nondisclosure and
26 confidentiality provisions.
27 (b) Except as to privileged records, data and information, the laws of
28 any compacting state pertaining to confidentiality or nondisclosure
29 shall not relieve any compacting state commissioner of the duty to
30 disclose any relevant records, data or information to the commission;
31 provided however, that disclosure to the commission shall not be deemed
32 to waive or otherwise affect any confidentiality requirement; and
33 provided further that, except as otherwise expressly provided in this
34 article, the commission shall not be subject to the laws of any compact-
35 ing state pertaining to confidentiality and nondisclosure with respect
36 to records, data and information in its possession. Confidential infor-
37 mation of the commission shall remain confidential after such informa-
38 tion is provided to any commissioner.
39 (c) The commission shall monitor compacting states for compliance with
40 duly adopted by-laws, rules, including uniform standards, and operating
41 procedures. The commission shall notify such noncomplying compacting
42 state in writing of its noncompliance with commission by-laws, rules or
43 operating procedures. If the noncomplying compacting state fails to
44 remedy such noncompliance within the time specified in the notice of
45 noncompliance, the compacting state shall be deemed to be in default as
46 set forth in section eight thousand eight hundred fifteen of this arti-
47 cle.
48 (d) The commissioner of any state in which an insurer is authorized to
49 do business, or is conducting the business of insurance, shall continue
50 to exercise his or her authority to oversee the market regulation of the
51 activities of the insurer in accordance with the provisions of the
52 state's law. The commissioner's enforcement of compliance with the
53 compact is governed by the following provisions:
54 (1) with respect to the commissioner's market regulation of a product
55 or advertisement that is approved or certified to the commission, the
56 content of the product or advertisement shall not constitute a violation
A. 6191 11
1 of the provisions, standards or requirements of the compact except upon
2 a final order of the commission, issued at the request of a commissioner
3 after prior notice to the insurer and an opportunity for hearing before
4 the commission.
5 (2) before a commissioner may bring an action for violation of any
6 provision, standard or requirement of the compact relating to the
7 content of an advertisement not approved or certified to the commission,
8 the commission or an authorized commission officer or employee, must
9 authorize the action. However, authorization pursuant to this paragraph
10 does not require notice to the insurer, opportunity for hearing or
11 disclosure of requests for authorization or records of the commission's
12 action on such requests.
13 § 8810. Dispute resolution. The commission shall attempt, upon the
14 request of a member, to resolve any disputes or other issues that are
15 subject to this compact and which may arise between two or more compact-
16 ing states, or between compacting states and non-compacting states, and
17 the commission shall promulgate an operating procedure providing for
18 resolution of such disputes.
19 § 8811. Product filing and approval. (a) Insurers and third-party
20 filers seeking to have a product approved by the commission shall file
21 such product with, and pay applicable filing fees to, the commission.
22 Nothing in this article shall be construed to restrict or otherwise
23 prevent an insurer from filing its product with the insurance department
24 in any state wherein such insurer is licensed to conduct the business of
25 insurance, and such filing shall be subject to the laws of the states
26 where filed.
27 (b) The commission shall establish appropriate filing and review proc-
28 esses and procedures pursuant to commission rules and operating proce-
29 dures. Notwithstanding any provision in this section to the contrary,
30 the commission shall promulgate rules to establish conditions and proce-
31 dures under which the commission will provide public access to product
32 filing information. In establishing such rules, the commission shall
33 consider the interests of the public in having access to such informa-
34 tion, as well as protection of personal medical and financial informa-
35 tion and trade secrets, that may be contained in a product filing or
36 supporting information.
37 (c) Any product approved by the commission may be sold or otherwise
38 issued in those compacting states in which the insurer is legally
39 authorized to do business.
40 § 8812. Review of commission decisions regarding filings. (a) Not
41 later than thirty days after the commission has given notice of a disap-
42 proved product or advertisement filed with the commission, the insurer
43 or third party filer whose filing was disapproved may appeal the deter-
44 mination to a review panel appointed by the commission. The commission
45 shall promulgate rules to establish procedures for appointing such
46 review panel and provide for notice and hearing. An allegation that the
47 commission, in disapproving a product or advertisement filed with the
48 commission, acted arbitrarily, capriciously or in a manner that is an
49 abuse of discretion or otherwise not in accordance with law, is subject
50 to judicial review in accordance with subsection (e) of section eight
51 thousand eight hundred four of this article.
52 (b) The commission shall have authority to monitor, review and recon-
53 sider products and advertisement subsequent to their filing or approval
54 upon a finding that the product does not meet the relevant uniform stan-
55 dard. Where appropriate, the commission may withdraw or modify its
A. 6191 12
1 approval after proper notice and hearing, subject to the appeal process
2 set forth in subsection (a) of this section.
3 § 8813. Finance. (a) The commission shall pay or provide for the
4 payment of the reasonable expenses of its establishment and organiza-
5 tion. To fund the cost of its initial operations, the commission may
6 accept contributions and other forms of funding from the NAIC, compact-
7 ing states and other sources. Contributions and other forms of funding
8 from other sources shall be of such a nature that the independence of
9 the commission concerning the performance of its duties shall not be
10 compromised.
11 (b) The commission shall collect a filing fee from each insurer and
12 third party filer filing a product with the commission to cover the cost
13 of the operations and activities of the commission and its staff in a
14 total amount sufficient to cover the commission's annual budget.
15 (c) The commission's budget for a fiscal year shall not be approved
16 until it has been subject to notice and comment as set forth in section
17 eight thousand eight hundred eight of this article.
18 (d) The commission shall be exempt from all taxation in and by the
19 compacting states.
20 (e) The commission shall not pledge the credit of any compacting
21 state, except by and with the appropriate legal authority of that
22 compacting state.
23 (f) The commission shall keep complete and accurate accounts of all
24 its internal receipts, including grants and donations and disbursements
25 of all funds under its control. The internal financial accounts of the
26 commission shall be subject to the accounting procedures established
27 under its by-laws. The financial accounts and reports including the
28 system of internal controls and procedures of the commission shall be
29 audited annually by an independent certified public accountant. Upon the
30 determination of the commission, but no less frequently than every three
31 years, the review of such independent auditor shall include a management
32 and performance audit of the commission. The commission shall make an
33 annual report to the governor and legislature of the compacting states,
34 which shall include a report of such independent audit. The commission's
35 internal accounts shall not be confidential and such materials may be
36 shared with the commissioner of any compacting state upon request,
37 provided, however, that any work papers related to any internal or inde-
38 pendent audit and any information regarding the privacy of individuals
39 and insurers' proprietary information, including trade secrets, shall
40 remain confidential.
41 (g) No compacting state shall have any claim to or ownership of any
42 property held by or vested in the commission or to any commission funds
43 held pursuant to the provisions of this compact.
44 § 8814. Compacting states, effective date and amendment. (a) Any state
45 is eligible to become a compacting state.
46 (b) The compact shall become effective and binding upon legislative
47 enactment of the compact into law by two compacting states; provided
48 however, that the commission shall become effective for purposes of
49 adopting uniform standards for reviewing, and giving approval or disap-
50 proval of, products filed with the commission that satisfy applicable
51 uniform standards only after twenty-six states are compacting states or,
52 alternatively, by states representing greater than forty percent of the
53 premium volume for life insurance, annuity, disability income and long-
54 term care insurance products, based on records of the NAIC for the prior
55 year. Thereafter, it shall become effective and binding as to any other
56 compacting state upon enactment of the compact into law by that state.
A. 6191 13
1 (c) Amendments to the compact may be proposed by the commission for
2 enactment by the compacting states. No amendment shall become effective
3 and binding upon the commission and the compacting states unless and
4 until all compacting states enact the amendment into law.
5 § 8815. Withdrawal, default and termination. (a)(1) Once effective,
6 the compact shall continue in force and remain binding upon each and
7 every compacting state; provided that a compacting state may withdraw
8 from the compact ("withdrawing state") by enacting a statute specif-
9 ically repealing the statute which enacted the compact into law.
10 (2) The effective date of withdrawal is the effective date of the
11 repealing statute. However, the withdrawal shall not apply to any prod-
12 uct filings approved or self-certified, or any advertisement of such
13 products, on the date the repealing statute becomes effective, except by
14 mutual agreement of the commission and the withdrawing state unless the
15 approval is rescinded by the withdrawing state as provided in paragraph
16 five of this subsection.
17 (3) The commissioner of the withdrawing state shall immediately notify
18 the management committee in writing upon the introduction of legislation
19 repealing this compact in the withdrawing state.
20 (4) The commission shall notify the other compacting states of the
21 introduction of such legislation within ten days after its receipt of
22 notice thereof.
23 (5) The withdrawing state is responsible for all obligations, duties
24 and liabilities incurred through the effective date of withdrawal,
25 including any obligations, the performance of which extend beyond the
26 effective date of withdrawal, except to the extent those obligations may
27 have been released or relinquished by mutual agreement of the commission
28 and the withdrawing state. The commission's approval of products and
29 advertisement prior to the effective date of withdrawal shall continue
30 to be effective and be given full force and effect in the withdrawing
31 state, unless formally rescinded by the withdrawing state in the same
32 manner as provided by the laws of the withdrawing state for the prospec-
33 tive disapproval of products or advertisement previously approved under
34 state law.
35 (6) Reinstatement following withdrawal of any compacting state shall
36 occur upon the effective date of the withdrawing state's legislation
37 reenacting the compact.
38 (b) (1) If the commission determines that any compacting state has at
39 any time defaulted ("defaulting state") in the performance of any of its
40 obligations or responsibilities under this compact, the by-laws or duly
41 promulgated rules or operating procedures, then, after notice and hear-
42 ing as set forth in the by-laws, all rights, privileges and benefits
43 conferred by the compact on the defaulting state shall be suspended from
44 the effective date of default as fixed by the commission. The grounds
45 for default include, but are not limited to, failure of a compacting
46 state to perform its obligations or responsibilities, and any other
47 grounds designated in commission rules. The commission shall immediately
48 notify the defaulting state in writing of the defaulting state's suspen-
49 sion pending a cure of the default. The commission shall stipulate the
50 conditions and the time period within which the defaulting state must
51 cure its default. If the defaulting state fails to cure the default
52 within the time period specified by the commission, the defaulting state
53 shall be terminated from the compact and all rights, privileges and
54 benefits conferred by the compact shall be terminated from the effective
55 date of termination.
A. 6191 14
1 (2) Product approvals by the commission or product self-certifica-
2 tions, or any advertisement in connection with such product, that are in
3 force on the effective date of termination shall remain in force in the
4 defaulting state in the same manner as if the defaulting state had with-
5 drawn voluntarily under this section.
6 (3) Reinstatement following termination of any compacting state
7 requires a reenactment of the compact by that state.
8 (c)(1) The compact dissolves effective upon the date of the withdrawal
9 or default of the compacting state which reduces membership in the
10 compact to one compacting state.
11 (2) Upon the dissolution of the compact, the compact becomes null and
12 void and shall be of no further force or effect, and the business and
13 affairs of the commission shall be wound up and any surplus funds shall
14 be distributed in accordance with the by-laws.
15 § 8816. Severability and construction. (a) The provisions of the
16 compact shall be severable; and if any phrase, clause, sentence or
17 provision is deemed unenforceable, the remaining provisions of the
18 compact shall be enforceable.
19 (b) The provisions of the compact shall be liberally construed to
20 effectuate its purposes.
21 § 8817. Binding effect of compact and other laws. (a) Nothing in this
22 section prevents the enforcement of any other law of a compacting state,
23 except as provided in subsection (b) of this section.
24 (b) For any product approved or certified to the commission, the
25 rules, uniform standards and any other requirements of the commission
26 shall constitute the exclusive provisions applicable to the content,
27 approval and certification of such products. For advertisement that is
28 subject to the commission's authority, any rule, uniform standard or
29 other requirement of the commission which governs the content of the
30 advertisement shall constitute the exclusive provision that a commis-
31 sioner may apply to the content of the advertisement. Notwithstanding
32 the foregoing, no action taken by the commission shall abrogate or
33 restrict:
34 (1) the access of any person to state courts;
35 (2) remedies available under state law related to breach of contract,
36 tort or other laws not specifically directed to the content of the prod-
37 uct;
38 (3) state law relating to the construction of insurance contracts; or
39 (4) the authority of the attorney general of the state including, but
40 not limited to, maintaining any actions or proceedings as authorized by
41 law.
42 (c) All insurance products filed with individual states shall be
43 subject to the laws of those states.
44 (d) All lawful actions of the commission, including all rules and
45 operating procedures promulgated by the commission, are binding upon the
46 compacting states.
47 (e) All agreements between the commission and the compacting states
48 are binding in accordance with their terms.
49 (f) Upon the request of a party to a conflict over the meaning or
50 interpretation of commission actions, and upon a majority vote of the
51 compacting states, the commission may issue advisory opinions regarding
52 the disputed meaning or interpretation.
53 (g) In the event any provision of this article exceeds the constitu-
54 tional limits imposed on the legislature of any compacting state, the
55 obligations, duties, powers or jurisdiction sought to be conferred by
56 that provision upon the commission shall be ineffective as to such
A. 6191 15
1 compacting state, and such obligations, duties, powers or jurisdiction
2 shall remain in the compacting state and shall be exercised by the agen-
3 cy thereof to which such obligations, duties, powers or jurisdiction are
4 delegated by law in effect at the time the compact becomes effective.
5 § 3. This act shall take effect upon the enactment into law by two
6 compacting states of legislation having an identical effect with this
7 act, but if the compacting states shall have already enacted such legis-
8 lation, this act shall take effect immediately; provided that the super-
9 intendent of insurance shall notify the legislative bill drafting
10 commission upon the occurrence of the enactment of the legislation
11 provided for in section two of this act in order that the commission may
12 maintain an accurate and timely effective data base of the official text
13 of the laws of the state of New York in furtherance of effectuating the
14 provisions of section 44 of the legislative law and section 70-b of the
15 public officers law.
