COVID-19-Related insurance regulatory developments

Eversheds Sutherland (US) LLPThere has been significant activity at both the state and federal levels related to the novel coronavirus (COVID-19) and its impact on the insurance industry. This alert summarizes some of the most notable COVID-19-related insurance regulatory developments over the past week, including a National Association of Insurance Commissioners (NAIC) symposium on COVID-19, state insurance department guidance and requests for information related to COVID-19, developments related to business interruption (BI) coverage, and a proposal for a federal backstop for insurance claims related to future pandemics.

I. NAIC COVID-19 Symposium

In March 20, NAIC President and South Carolina Insurance Director Raymond Farmer hosted a two-and-a-half-hour special session on COVID-19 via Webex. The Webex session was scheduled in lieu of an in-person COVID-19 symposium that would have taken place on March 22 in Phoenix, Arizona, as part of the NAIC Spring National Meeting, which was canceled due to the COVID-19 crisis.

Presenters included representatives from the Centers for Disease Control and Prevention (CDC) on virus progression and pathology and from the Centers for Medicare & Medicaid Services (CMS) on the impact of COVID-19 on the health insurance market. The CDC described social distancing as the most effective preventive measure because a protective vaccine is not expected to be available for the next 12-18 months. CMS, which is responsible for enforcing patient safety standards for some of the most vulnerable populations, noted its partnership with state regulators on COVID-19. When President Trump declared a national emergency on March 13, it empowered CMS to waive certain federal requirements in Medicaid, Medicare and the Children’s Health Insurance Program, and to further expand their aggressive efforts to battle the coronavirus. CMS strongly encouraged states to take advantage of the broad range of options available through the federal waivers afforded by the emergency declaration (for example, broader telehealth services).  

CEOs of the American Council of Life Insurers (ACLI), America’s Health Insurance Plans and the American Property Casualty Insurance Association (APCIA) each discussed the efforts being taken in their individual market segments to be as responsive as possible in accommodating the needs of their customers during this crisis. They noted that the insurance industry and the state-based regulatory system are well equipped to weather the effects of the COVID-19 crisis, as evidenced by the industry’s response to prior catastrophes and the 2008 financial crisis. At the same time, each spoke about the issues insurers are facing to provide ongoing customer service in the face of shuttered offices and federal and state directives and reporting requirements of various kinds (discussed in Section II below). They were consistent in their request that the NAIC take action to coordinate state insurance data calls related to COVID-19 preparedness, so that they are uniform in scope and afford adequate time to respond. The CEO of APCIA warned against regulatory or legislative action that would retroactively change policy terms and conditions to include coverage that is not reflected in existing pricing or reserves.

Insurance commissioners from Pennsylvania, Colorado, Washington, California and South Carolina closed the session by outlining steps they have taken or are planning to take to ensure coverage for COVID-19 testing and treatment and to expand health coverage through the state health exchanges. Some have also sought the cooperation of short-term, limited-duration plan administrators in ensuring coverage for COVID-19. Many are working on telehealth expansion so that individuals do not visit doctors’ offices or hospital emergency rooms for testing or treatment.

Just as the coronavirus itself is evolving, so too, we expect, will the NAIC’s response. Director Farmer said, “The NAIC plans to continue to look at innovative ways to tackle the COVID-19 health crisis.” He reaffirmed the NAIC’s commitment to protect consumers, monitor the health of the insurance industry, and provide factual and reliable information to public policymakers as the impact of COVID-19 unfolds.

II. State Insurance Department Guidance and Requests

Nearly every state insurance department has issued some guidance, directive or request for information to regulated insurance entities related to COVID-19. The scope and subject of these regulatory bulletins, notices and orders vary significantly from state to state, with some broadly directed at all regulated insurance entities (and others directed only at domestic or foreign licensed insurers); some relating only to specific lines of business most affected by COVID-19 (such as health insurance, travel insurance and commercial property/casualty insurance); and some requiring an affirmative response to the state insurance department before a specified date (while others simply provide guidance or clarify the department’s position on COVID-19-related issues).

The following is an overview of some of the most notable state insurance department activity to date related to COVID-19. We do not list all COVID-19-related regulatory activity. ACLI and APCIA have each issued alerts to their respective members with more exhaustive lists of COVID-19-related state activity.

  • The New York Department of Financial Services (DFS) has been one of the most active state insurance departments with respect to COVID-19. Most notably, on March 10, DFS issued a letter to all DFS-regulated insurance entities providing guidance and requesting assurance that all regulated entities have preparedness plans to address the operational risk, and are identifying, monitoring, and managing the financial risk, posed by COVID-19. The letter requires each regulated entity to submit a response to DFS describing its preparedness plans as soon as possible, but no later than April 9, 2020. All New York-licensed insurers (foreign and domestic) and accredited reinsurers are required to respond. For more information on DFS’s March 10 letter and other COVID-19-related DFS activity, please see our Legal Alert: New York Department of Financial Services issues guidance and request for preparedness plans related to COVID-19 due by April 9, 2020.
  • The state insurance departments of Connecticut and West Virginia also issued directives requiring certain insurers to submit information related to their COVID-19 preparedness plans, with Connecticut emailing domestic insurers directly and West Virginia issuing a bulletin to foreign licensed insurers (and noting that domestic insurers would receive separate guidance). A number of other states, including Oklahoma, Pennsylvania, Tennessee and Texas, have directed insurers to review their internal business continuity and contingency plans and procedures in light of the COVID-19 crisis.
  • Some states, including Delaware and New Mexico, have issued data calls related to lines of insurance expected to be most affected by COVID-19 (that is, travel insurance and health insurance).
  • The Florida Office of Insurance Regulation (FLOIR) issued an informational memorandum notifying all insurers and other entities regulated by the FLOIR that they are required to notify the FLOIR within the same day if they activate their business continuity and/or continuity of operations plan in response to COVID-19. Insurers and other regulated entities are also required to notify the FLOIR immediately if, in response to COVID-19, the entity’s business operations are compromised to the extent that it jeopardizes the entity’s ability to provide essential insurance services to policyholders.
  • The California Department of Insurance issued a notice requesting that all insurance companies provide their policyholders with at least a 60-day grace period to pay insurance premiums. The notice is directed to all admitted and non-admitted insurance companies that provide any insurance coverage in California, as well as licensed insurance producers.
  • A number of states have issued health insurance coverage-related guidance and requests, including mandates (or requests) that insurers waive cost-sharing requirements in connection with COVID-19-related testing and treatment, provide policyholders with COVID-19-related explanations of benefits, and facilitate the use of covered telehealth services.

With an increasing number of states and municipalities issuing orders (or requests) that all “non-essential businesses” close (and move to a remote workforce, if possible), including California, Connecticut, Illinois, New Jersey, New York and Pennsylvania, many insurers and insurance producers are considering whether their operations constitute “essential businesses” that may continue operating (and, if so, to what extent). On, March 19, the Cybersecurity and Infrastructure Security Agency (CISA) within the US Department of Homeland Security published a Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response that includes an initial list of “Essential Critical Infrastructure Workers” intended to promote uniformity and consistency across states. While the CISA memo notes that it is “advisory in nature” and is not, and should not be considered to be, “a federal directive or standard,” the list of essential workers includes “workers who are needed to process and maintain systems for processing financial transactions and services,” including “insurance services.” A number of states have also issued state-specific guidance (with some that adopt the CISA list). For example, the California Department of Insurance issued Guidance on Essential Business and Insurance, which references the CISA memo and provides:

Commissioner Lara also encourages all insurance businesses to continue to provide as many core insurance functions as possible during the COVID-19 pandemic while balancing the protection of the health or safety of their employees and other workers. Any insurance employee or worker continuing to perform core insurance functions during the pandemic should be encouraged to work remotely when possible, comply with social distancing requirements to the extent possible if in-person functions are necessary, and focus only on core insurance activities and functions. It is encouraged that in-person, non-mandatory activities deemed non-essential should be delayed, if possible, until the resumption of normal operations.

We will continue to monitor state and federal guidance related to these issues.

III. Coverage of COVID-19-Related Losses Under Business Interruption Insurance

As the COVID-19 pandemic continues to have significant economic consequences for the US economy, a key issue for insurers and businesses throughout the country will be whether all or a portion of losses may be covered under the property insurance policies covering their businesses. Because many commercial policies would not provide BI coverage for losses occasioned by COVID-19-related shutdowns, there may be mounting legislative or regulatory pressures on insurers to pay BI losses despite what their policies say.

Standard commercial property insurance policies typically include one or more of the following types of coverage for BI-related losses:

  • BI Coverage: This type of insurance covers losses when the insured property suffers direct physical loss or damage. Such damage is not necessarily limited to structural damage, as some courts have found that direct physical loss or damage can be caused by contamination of premises, such as when buildings have become uninhabitable by gases or bacteria (see Gregory Packaging Inc. v. Travelers Prop. Cas. Co. of Am., 2014 U.S. Dist. LEXIS 165232, at *15-17 (D.N.J. Nov. 25, 2014)). In any event, in order for this coverage to be applicable, the virus is required to be on the physical premises of the business; losses resulting from reduced business due to fears of the virus are not covered. In addition, policies often include specific exclusions for bacteria or viruses. 
  • Contingent BI Coverage: This insurance covers losses suffered by the insured due to damages to key business partners or suppliers. Thus, for this coverage, the policyholder is not required to suffer direct property damage; rather, the insurance is typically triggered if the business partner/supplier suffers damage of the type covered under the policy. To determine whether losses are covered, policy terms should be reviewed to determine the scope of the business partners/suppliers to which the coverage is applicable and whether any exclusions are applicable.
  • Civil Authority Coverage: This insurance covers losses occurring when actions by local, state or federal authorities in response to damage to property other than the insured’s property prohibit access to the insured’s property. To determine whether losses are covered, policy terms should be reviewed to determine whether the insured property is sufficiently close to the damaged property to be covered under the policy and whether the specific actions taken by applicable governmental authorities meet policy requirements.

In light of the policy interpretation issues inherent in determining whether COVID-19-related losses are covered under BI policies, we are likely to see an increase in policyholder litigation relating to the issue in the coming months. 

Most recently, last Monday, the proprietors of Oceana Grill, a New Orleans-based restaurant located in the French Quarter, filed a petition in state court seeking a declaratory judgment that their BI coverage would cover COVID-19-related damages. The petition asserts that contamination by the coronavirus “would be a direct physical loss” requiring remediation to clean the surfaces of the establishment, and notes the applicable policy does not include an exclusion for losses from a virus or global pandemic. It also asks the court for a declaratory judgment that a Civil Authority Order by Louisiana Governor John Edwards banning gatherings of 250 or more people in a single space and restrictions on restaurants issued by the Mayor of New Orleans trigger the civil authority provision of the policy.

IV. Business Interruption Coverage Legislative Roundup

Legislators at both the federal and state levels are also considering whether legislative action should be taken to ensure that COVID-19-related losses are covered under BI policies.

In the House of Representatives, a small bipartisan group of representatives sent an open memo regarding commercial business insurance coverage to the CEOs of the APCIA, the National Association of Mutual Insurance Companies, the Independent Insurance Agents & Brokers of America, and the Council of Insurance Agents & Brokers. In the memo, the group of approximately 20 lawmakers proposed that the insurance industry accept coronavirus-related financial losses subject to commercial BI coverage. 

The industry groups quickly rejected the lawmakers’ proposal, noting that BI policies, which are approved by state regulators, “do not, and were not designed to, provide coverage against communicable diseases such as COVID-19.”

At the state level, the New Jersey State Assembly failed to vote on a bill, NJ A 3844, that would have required insurers to cover BI claims relating to coronavirus-incurred financial losses, even where the subject policy included the regulator-approved ISO “virus” exclusion. Insurers required to pay COVID-19-related BI claims would be permitted to seek reimbursement from the New Jersey Department of Banking and Insurance, which, in turn, would apportion losses through a special assessment of all authorized insurers writing that line of business. The Assembly failed to take action on the bill, despite first voting 63-0 to hold an emergency hearing on the bill.  

It is increasingly unlikely there will be immediate legislative action at the state level. As of this writing, more than 30 states have now suspended all legislative activity through at least the end of March due to the pandemic. 

V. Pandemic Risk Insurance Act of 2020

In an effort to address future pandemic risks, California Representative Maxine Waters, Chair of the House Financial Services Committee, has proposed the Pandemic Risk Insurance Act of 2020 (PRIA). Analogous to the Terrorism Risk Insurance Act (TRIA), which created a federal backstop for insurance claims related to acts of terrorism, PRIA would create a federal backstop for insurance claims related to a pandemic or epidemic. Specifically, PRIA would establish a federal loss-sharing program that would enable insurers to partner with the federal government to cover significant losses resulting from a pandemic or epidemic, such as losses due to large-event cancellations and revenue losses from closed businesses. The Secretary of the Treasury would be responsible for administering the program and, in consultation with the Secretary of Health & Human Services, would certify a particular health event or outbreak as a “pandemic” or “epidemic” covered under PRIA. PRIA has not yet been formally introduced as legislation, and many details are still unclear (including what lines of business would be covered by PRIA, and how industry recoupment payments would be calculated following a PRIA-covered event).

As currently proposed, PRIA would create the Pandemic Risk Insurance Program (PRIP). PRIP would aim to do the following:

  • Create a temporary three-year federal program of shared public and private compensation for insured losses resulting from pandemic and epidemic losses, which is intended to allow the private market to stabilize.
  • Protect consumers by ensuring the availability and affordability of insurance for pandemic and epidemic risks.
  • Protect various businesses (for example, restaurants, hotels, convention centers, event venues, transportation services, caterers) and municipalities that depend on public events for revenue.
  • Preserve state regulation of insurance.

Notably, PRIP would not apply retroactively, so the program would not be available to cover losses related to the current COVID-19 crisis.

Like TRIA, coverage under PRIP would be subject to a minimum loss threshold for the program to go into effect ($100 million in insured losses, increasing to $150 million in 2021), an insurer deductible (10% of the insurer’s annual direct earned premiums for the commercial property/casualty lines to be specified in PRIA), and a co-payment (19% of each insurer’s losses above its deductible), up to an aggregate cap ($10 billion in aggregate losses). The federal government would provide assistance up front, and could then recoup the payments it made through a broad levy on PRIA-covered insurance policies thereafter. Under the current proposal, recoupment would be possible but not mandatory. The proposal also notes that, in addition to monthly or annual premiums, insured entities would “equally contribute to a loss fund” in the event of a PRIA-covered event.

PRIA would require insurers that offer PRIA-covered lines of insurance to make pandemic insurance available to commercial policyholders, but (as with TRIA) policyholders would not be required to purchase PRIA coverage. If a policyholder declined to purchase PRIA coverage, the insurer could exclude coverage for pandemic losses. PRIA would not limit what insurers can charge for pandemic risk insurance, but state regulators would retain their authority under existing state laws to prohibit rates deemed to be excessive, inadequate, or unfairly discriminatory.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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