Industry the Jan/Feb 2014 issue

Browns Fan Optimism

We are ready to tackle a wide range of moves as part of our 2014 game plan.
By Scott Sinder Posted on January 28, 2014

I was just a few months old on December 27, 1964, when the Browns beat the Colts 27-0 at Cleveland Municipal Stadium. Let the record reflect that I have no firsthand memory of the euphoria that ensued in Cleveland that merry night. Half a century later, my fellow sports-crazed Cleveland fans cheer on our heroes, proof that hope really does spring eternal.

Thoughts of the New Year also inspire within me an inclination toward crystal ball gazing. What do we hope to accomplish this year on the public policy front? Here’s my wish list:

  • TRIA Extension. The Terrorism Risk Insurance Act is set to expire on December 31, 2014. Policyholders, especially commercial real estate borrowers and those in highly exposed industries, need access to coverage or the economy could grind to a halt. Workers comp writers also need the backstop to shield them from what otherwise could be catastrophic exposures. A 10-year or longer simple extension of the current law would be ideal. Rep. Jeb Hensarling, R-Texas, chairman of the House Financial Services Committee, likely won’t allow such an extension, but I think he ultimately will look past his adamant opposition to the program and accede to the wishes of the majority to allow a five-year extension. There likely will be a price to pay even for a five-year extension, probably in the form of increased industry costs to cover terrorism-related losses, but our efforts to get the extension will be rewarded.
  • NARAB II Enactment. At this juncture, the best path to overcoming objections to NARAB II enactment might be to tack the legislation onto whatever TRIA bill moves through the Senate. We had hoped to get something done much sooner, but TRIA will be a must-pass bill in 2014 and that may be a viable path to finally getting our national licensure facility up and running.
  • Excluding P-C from the FATCA Regime. The new Foreign Accounts Tax Compliance Act regulatory regime is scheduled to go into effect July 1. Efforts to exclude property-casualty premium payments to foreign insurers from the scope of the compliance regime have been rejected by the Treasury Department, but we remain hopeful that Congress will correct this injustice by enacting legislation that codifies the requested exemption. If we fail in that effort, you will be hearing a lot more from us about both how to comply and how we are going to help you with those efforts.
  • Exempting Commercial Insurance Agency/Brokerage Activities from Anti-Rebating Laws. A long-standing area of frustration for many Council member firms is state anti-rebating laws that have been interpreted to prevent or limit the ability of agents and brokers to provide value-added services unless clients pay a separate fee. These rules interfere with the contractual relationship between the agent/broker and the insured. When Florida’s anti-rebating rules were struck down, the state Supreme Court said they advanced no public interest. In the past, we focused on rationalizing these restrictions. This year we will attack the application of these antiquated rules.
  • Obamacare Implementation. By the time you read this, I have no doubt many of the exchange implementation and “keep your coverage” debacles will have quieted to a dull roar. I also have no doubt new issues will have arisen to complicate the president’s vision of healthcare reform. We hope whatever comes up will help focus attention on how the law can be fixed since repeal and replace is not a viable option for many years to come. Until then, though, our implementation slog will grind on. In 2014, we will be striving to:  
    1. Implement regulations making clear the “non-discrimination” rules are satisfied as long as all full-time employees are eligible for the same insured plans as are their more highly compensated colleagues (as opposed to a post-hoc review of actual participation by plan)
    2. Replicate for 2015 the transitional rules that would have applied to the 2014 employer mandate rollout
    3. Confirm that minimum value rules are satisfied if a plan’s premiums cover 60% of anticipated medical care costs of that plan, as the statute dictates (as opposed to 60% of the anticipated medical care costs of some mythical “standardized” benchmark plan, as required through the mandated use of regulators’ MV calculator)
    4. Protect self-insured plans (and the stop-loss coverage that backs them) from legislative and regulatory incursion at both the state and federal levels
    5. Continue to advance the broker role in the employer healthcare marketplace.

It’s a big list. We have lots to do and lots of hope and aspirations to energize us. I’m a Cleveland Browns fan. This is the year.

Scott Sinder Chief Legal Officer, The Council & Partner, Steptoe & Johnson LLP Read More

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