6035-S AMS KOHL NICH 035

SSB 6035 - S AMD 235

By Senators Kohl-Welles, Marr, and Kastama

ADOPTED 3/12/2009

    Strike everything after the enacting clause and insert the following:

"NEW SECTION.  Sec. 1. The legislature finds that a recurring miscalculation of refunds provided to the sponsors of retrospective rating plans has depleted the industrial insurance accident fund of more than one hundred million dollars, and perhaps as much as one hundred fifty million dollars, with the participants in the retrospective rating plans receiving the benefit of that miscalculation.  In some cases, those overpayments to the sponsors of retrospective rating plans have been returned to employer members of those plans and in some cases have been used to fund the activities of the sponsors of those plans.  As the premiums paid by employers into the accident fund are based in part upon the solvency of the fund, the legislature finds that overpayments have caused the accident fund to contain fewer assets than it otherwise would contain, requiring base premiums to be set at a level higher than would otherwise be necessary, and further causing the employers who are not members of a retrospective rating plan to subsidize retro members by inflating the amount of retro refunds beyond what was merited by the experience of retro member employers.

    The legislature further finds that although the overpayment by the department of labor and industries was not intentional, the error resulting in the overpayment was not identified in the numerous reviews and analyses that have been conducted in the fifteen years since the erroneous calculations began.  The legislature finds that additional evaluations and increased transparency of the retrospective rating system are needed.

NEW SECTION.  Sec. 2. A new section is added to chapter 51.18 RCW to read as follows:

    The legislature finds that the primary purposes of the retrospective rating program created in this chapter are increasing workplace safety, preventing accidents, and improving worker outcomes.  The legislature finds that retrospective rating refunds are provided from the industrial insurance accident account, and that the use of Title 51 funds to improve workplace safety, prevent accidents, and improve injured worker outcomes are appropriate uses of such funds.  The legislature further finds that any retrospective rating refunds not used to administer the retrospective rating group or to support the purposes of the retrospective rating program belong to and should be returned to the employer members of each retrospective rating group, with the sole exception that individual members may annually authorize use of retrospective rating refunds for purposes unrelated to worker safety and accident prevention, the primary purposes of the retrospective rating program, similar to the annual authorization required from the members of union organizations.  The legislature therefore intends to allow and encourage retrospective rating group sponsoring entities to use retrospective rating refunds to create and maintain programs that improve workplace safety, prevent accidents, and improve worker outcomes while distributing the remainder of the refund to employer members of the group, subject to the optional annual authorizations by the members of each group.  To restore public confidence in the use of retrospective rating funds, the legislature intends to make information concerning the sponsoring entities' administration of the program publicly available.

NEW SECTION.  Sec. 3. A new section is added to chapter 51.18 RCW to read as follows:

    Beginning January 1, 2010, and continuing for five consecutive years, the department shall:

    (1) Conduct an annual actuarial review of the retrospective rating program.  The actuarial review must include an examination of the method used to calculate retrospective premiums, refunds, and assessments, an examination of the impact retrospective rating refunds and assessments have on the accident fund, and an examination of any other factors necessary to conduct a thorough actuarial review.

    (2) By December 31st of each year in which an actuarial review is conducted, report the contents of the review to the appropriate committees of the legislature.

NEW SECTION.  Sec. 4. A new section is added to chapter 51.18 RCW to read as follows:

    (1) With respect to refunds made by the department to a sponsor of a retrospective rating group on or after the effective date of this section:   

    (a) The sponsoring entity must distribute the retrospective rating refund or adjustment to employers in the retrospective rating group based on a distribution plan, less any amount retained by the sponsoring entity, within a time period selected by the sponsoring entity and set forth in the distribution plan.  The distribution plan may not authorize a sponsoring entity to retain any portion of a refund or adjustment, except as authorized by this section.  This distribution plan shall be provided to the department upon enrollment, and annually to the members of the retrospective rating group.  The department shall make the distribution plan publicly available, excluding any financial information specific to individual employer members.

    (b) The sponsoring entity may retain a portion of the refund for reasonable administrative costs.  When any portion of the refund is distributed to the employers in the retrospective rating group, the sponsoring entity shall disclose to such employers and to the department the amounts of all administrative costs for which it has retained any portion of the refund and the specific purposes for which those costs were incurred.

    (c) The sponsoring entity may retain a portion of the refund for costs directly related to the development and implementation of a safety plan to increase workplace safety and to prevent accidents.  The safety plan shall be submitted to the department annually.  The department shall develop rules to define the required elements of a retrospective rating safety plan.

    (d) The sponsoring entity may retain a portion of the refund for costs directly related to claims assistance provided to its member employers.

    (e) The sponsoring entity may retain a portion of the refund to establish and maintain reserves for the sole and exclusive purpose of covering the costs of future potential retrospective rating assessments and an amount of reserves necessary to protect against future penalties or other unexpected retrospective rating costs incurred during the same or a subsequent coverage year. 

    (f) The sponsoring entity must keep a detailed list of costs related to (b) through (e) and of this subsection and report this list to the department and to employers in the retrospective rating group at the time the retrospective rating refunds or adjustments are distributed to members of the group.

    (g) Any amounts retained by a sponsoring entity under (b) through (e) of this subsection shall be used solely for the purposes described in those subsections, and may not be used directly or indirectly for any other purpose.

    (h) In addition to the amounts that a sponsoring entity may retain under subsections (b) through (e), the sponsoring entity may retain a portion of the retrospective rating refund or adjustment due an employer member if the member has provided a written authorization allowing the entity to retain a portion of the refund or adjustment due the employer member.  Any authorization provided by an employer member shall be effective for a period not to exceed one year.  If a sponsoring entity retains funds due the employer member under this subsection, the sponsoring entity must notify the employer member that additional funds have been retained by the sponsoring entity, and inform the employer member of the amount withheld from the employer member under this subsection. The department shall develop a form to be separately executed by any employer member authorizing the retention of funds under this subsection, which form shall (i)authorize the retention of either a percentage of the member's refund or a fixed dollar amount, and (ii)inform the member that the authorization is irrevocable for one year.  The sponsoring entity shall use the form developed by the department or a form prepared by the sponsoring entity that is consistent with this subsection and has been approved by the department.

    (i) Any amounts retained by a sponsoring entity under subsection (h) may be used by the sponsoring entity for any legal purpose, even if such purpose is unrelated to worker safety and accident prevention.

    (2) The group must comply with subsection (1) of this section to be approved by the department for future enrollment.

Sec. 5. RCW 51.18.030 and 1999 c 7 s 4 are each amended to read as follows:

    (1) Entities which sponsored retrospective rating groups prior to July 25, 1999, may not sponsor additional retrospective rating groups in a new business or industry category until the coverage period beginning January 1, 2003.

    (2) For retrospective rating groups approved by the department on or after July 25, 1999, the sponsoring entity may not propose another retrospective rating group in a new business or industry category until the minimum mandatory adjustment periods required by the department for the first two coverage periods of the last formed retrospective rating group are completed.

    (3) Subsections (1) and (2) of this section do not prohibit a sponsoring entity from proposing to:

    (a) Divide an existing retrospective rating group into two or more groups provided that the proposed new groups fall within the same business or industry category as the group that is proposed to be divided; or

    (b) Merge existing retrospective rating groups into one business or industry category provided that the proposed merged groups fall within the same business or industry category as the groups that are proposed to be merged.

    (4) Under no circumstances may a sponsoring entity propose retrospective rating groups in multiple business or industry categories in the same application to the department.

    (5) An insurer, insurance broker, agent, or solicitor may not:

    (a) Participate in the formation of a retrospective rating group; or

    (b) Sponsor a retrospective rating group.

    (6) A sponsoring entity may not require a participating member or applicant to: (a) agree to reenroll in the group's future coverage period, (b) maintain membership in the sponsoring entity or any other organization beyond the coverage period, which includes the three year period during which further refunds and assessments may be made, or (c) contribute funds to the sponsoring entity or any other organization in excess of the amounts authorized by this act."

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EFFECT: Requires disclosure of funds retained by retrospective ratings sponsor groups.  Allows retrospective ratings groups to retain funds for operation of the retrospective ratings programs and for purposes unrelated to workplace safety and injury prevention upon consent of their members.