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Testimony:

Before the Subcommittee on Oversight and Investigations, Committee on 
Financial Services, House of Representatives:

United States General Accounting Office:

GAO:

For Release on Delivery Expected at 3:00 p.m. EDT:

Tuesday, May 6, 2003:

Insurance Regulation:

Preliminary Views on States' Oversight of Insurers' Market Behavior:

Statement of Richard J. Hillman 
Director, Financial Markets and 
 Community Investment:

GAO-03-738T:

Madam Chairwoman and Members of the Subcommittee:

I appreciate the opportunity to provide you with preliminary 
observations from our work on state insurance regulators' oversight of 
market activities in the insurance industry. As you know, Chairman 
Oxley requested that we review the market conduct activities of state 
insurance regulators. We are nearing completion of this work, and we 
plan to issue a report on this subject in the near future.

As you requested, this testimony provides information on two important 
tools state insurance regulators use to oversee the market activities 
of insurance companies--market analysis and market conduct 
examinations. Market analysis is generally done in the state insurance 
departments. It consists of gathering and integrating information about 
insurance companies' operations in order to monitor market behavior and 
identify potential problems at an early stage. Market conduct 
examinations, which are generally done on site, are a review of an 
insurer's marketplace practices. The examination is an opportunity to 
verify data provided to the department by the insurer and to confirm 
that companies' internal controls and operational processes result in 
compliance with state laws and regulations. My focus today is on (1) 
the states' use of market analysis and examinations in market 
regulation, and (2) the effectiveness of the National Association of 
Insurance Commissioners' (NAIC) efforts to improve these oversight 
tools and encourage the states to use them.[Footnote 1]

To address these objectives, we collected data and interviewed 
officials from nine state insurance departments--Arkansas, California, 
Indiana, Maryland, Michigan, Missouri, New Mexico, Ohio, and Oregon, 
and at NAIC's Kansas City Headquarters. We also reviewed NAIC's past 
and current efforts to improve the market regulation program. We 
collected and analyzed data from NAIC on all states, including the 
number of licensed companies in each state, the number and types of 
examinations conducted, and the resources allocated to these 
activities. We also asked 40 companies, 20 each from among the largest 
300 property and casualty firms (based on direct written premiums) and 
the largest 300 life companies (based on asset size) about their market 
conduct examination experiences between 1999 and 2001. Most of these 
companies are national companies, selling in most or all of the states. 
However, because our sample was not statistically valid, our results 
cannot be projected to all insurers.

In summary, we found that while all states do some level of market 
analysis, few states have established formal market analysis programs 
to maintain a systematic and rigorous overview of companies' market 
behavior and to more effectively identify problem companies for more 
detailed review. The way state insurance regulators approach and 
perform market conduct examinations also varied widely across the 
states. While NAIC has developed a handbook for market conduct 
examiners, states are not required to use it, and we found that it is 
not consistently applied across states. Moreover, the handbook is not 
intended to provide guidance for some important aspects of market 
conduct examinations--for example, how often examinations should be 
performed or what criteria states should use to select companies to 
examine. We also found that the number of market conduct examiners 
differed widely among states and that there were no generally accepted 
standards for training and certifying examiners. These differences make 
it difficult for states to depend on other states' oversight of market 
activities. Most of the states that we visited told us that they felt 
responsible for regulating the behavior of all companies that sold 
insurance in their state. With anywhere from 900 to 2,000 companies 
operating within each state, the pool of companies is simply too large 
for any one insurance department to handle. Attempts to do so are 
neither efficient nor effective. Moreover, since many states do not 
coordinate their examinations with other states, some large multistate 
insurance companies reported being examined by multiple states, while 
other companies were examined infrequently or never.

We also found that since the mid 1970s, NAIC has taken a variety of 
steps to improve the consistency and quality of market conduct 
examinations. However, despite the NAIC's long-standing efforts and 
some limited successes, progress toward a more effective process has 
been slow. Recently, NAIC has increased the emphasis it places on 
market analysis and market conduct examinations as regulatory tools 
that could improve states' ability to oversee market conduct. With more 
consistent implementation of routine market analysis, states should be 
better able to use the resources they already have available to target 
companies requiring immediate attention. Also, by consistently applying 
common standards for market conduct examinations, states should be able 
to rely on regulators in other states for assessments of an insurance 
company's operations. These improvements should in turn increase the 
efficiency of the examination process and improve consumer protection 
by reducing existing overlaps and gaps in regulatory oversight. 
However, if NAIC cannot convince the various states to adopt and 
implement common standards for market analysis and examinations, 
current efforts to strengthen these consumer protection tools are 
unlikely to result in any fundamental improvement.

While we focus on the states' use of market analysis and market conduct 
examinations, market regulation includes several other important 
regulatory tools, including complaint handling and investigation, 
policy rate and form review, agent and company licensing, and consumer 
education. Most states have functioning programs addressing each of 
these four regulatory areas. Ideally, all regulatory tools, including 
market analysis and market conduct examinations, should work together 
in an integrated and interrelated way.

Lack of General Agreement on Standards for Market Analysis and Market 
Conduct Examinations Results in Wide Variations Among States:

In the absence of generally accepted standards, individual states 
decide how they will do market analysis and perform market conduct 
examinations. While all states do market analysis in some form, few 
have established formal programs that look at companies in a consistent 
and routine manner. States also have no generally agreed upon standards 
for how many examinations to perform, which companies to examine and 
how often, and what the scope of the examination should be. As a result 
of the lack of common standards for market analysis and the lack of 
consistency in the application of the guidelines for examinations, 
states find it difficult to depend on other states' oversight of 
companies' market behavior.

Few States Do Systematic and Routine Market Analysis:

NAIC and some states have a growing awareness that better market 
analysis can be a significant tool for monitoring the marketplace 
behavior of insurance companies and deciding which insurers to examine. 
All states perform some type of market analysis. In many states, 
however, it consists largely of monitoring complaints and complaint 
trends; and reacting to significant issues that arise. Three states 
that we visited--Missouri, Ohio, and Oregon--have established a 
proactive market analysis program. These programs for market analysis 
have established processes for monitoring company behavior to identify 
trends, companies that vary from the norm (outliers), and potential 
market conduct problems. In general, an established program would have 
dedicated staff and protocols for gathering data and conducting 
analysis at the department offices.

Each of the three states with an analysis process that we visited 
approached market analysis in a different way. Ohio's program consisted 
of special data calls to obtain extensive information from selected 
company files, and using computerized audit tools to analyze specific 
aspects of companies' operations relative to norms identified by peer 
analysis and to state law. For example, Ohio did 184 "desk audits" in 
2001 using data requested from companies doing business in the 
state.[Footnote 2] Missouri relied on routinely collecting market data 
from all licensed companies. Missouri has developed a market data 
report that companies submit as a supplement to their annual financial 
reports. This data is then used to evaluate market trends and 
conditions, as well as to identify individual companies that were 
outliers. Oregon's newly established program involved maintaining files 
on companies in which all available data was collected to facilitate a 
broad and ongoing review of company behavior. Both Ohio and Oregon told 
us that their market analysis programs were still in an experimental 
stage of development.

When properly done, market analysis can allow states to focus attention 
on the high-risk companies rather than selecting companies for 
examination based primarily on criteria such as market share, which 
does not directly correlate to market behavior problems. Missouri 
officials added that market analysis is not a substitute for market 
conduct examinations but should interact and be integrated with the 
examination process.

We Found Variations in the Way States We Visited Performed 
Examinations:

Each state has between 900 and 2,000 licensed insurance companies. 
Because in general states do not currently depend upon other states' 
regulation of companies' market behavior, most states feel a 
responsibility for overseeing all the companies selling in their 
state.[Footnote 3] The impossibility of examining so many companies 
requires regulators to identify and prioritize which companies they 
will examine. The states we visited used a variety of factors to choose 
companies for a market conduct examination. The most commonly used 
factors for choosing from among the companies deemed eligible for a 
market conduct examination were complaints, market share, and time 
since the last examination.

Some states chose to do market conduct exams for only a subset of 
licensed companies, even though other companies could comprise a 
majority of the insurers selling in the state.[Footnote 4] For example, 
of the states we visited, Arkansas focused primarily on domestic 
companies--that is, on companies chartered in their state. In Arkansas, 
245 of 1,668 licensed companies in 2001 were domestic. As a 
consequence, 1,423 non-domestic companies, or 85 percent of all the 
companies licensed in Arkansas in 2001, were not examined in Arkansas 
in spite of the fact that they may or may not have been examined by 
some other state.

All the states we visited limited the scope of their examinations to 
customers from within their particular state. That is, examiners looked 
only at files of state residents. Moreover, most states further limited 
the scope of their examinations by focusing on only one or a few of a 
company's area of operations. While some states still do comprehensive 
market conduct examinations, the trend is to conduct targeted 
examinations of limited scope and in a specific area of concern. State 
officials we interviewed indicated that targeted examinations are being 
used more often because these examinations do not take as long as 
comprehensive examinations, allowing states to conduct more. Of the 9 
states we visited, Arkansas, Missouri, and New Mexico continued to 
conduct some comprehensive examinations as well as targeted 
examinations.

Arkansas officials told us that they believed comprehensive 
examinations were important because such examinations provided the 
greatest assurance that companies were complying with insurance laws 
and regulations. According to NAIC, 49 states and the District of 
Columbia reported performing some market conduct activities in 2001. Of 
these, 15 completed only targeted examinations, 4 did only 
comprehensive examinations, and 22 completed some of both types of 
examination. The remaining nine did not complete any market conduct 
examinations in 2001.

The requirements for and level of training for examiners also varied 
widely among the states. Each of the states we visited provided some 
type of training for their examiners. However, there are no generally 
accepted standards for what constitutes adequate training for a market 
conduct examiner across the states. Several levels of certifications 
for market conduct examiners are available, but only 2 of the states we 
visited, Oregon and New Mexico, required their examiners to certify or 
become certified in a specified period.

States Vary in the Emphasis Given to Market Conduct Examinations:

As can be seen in table 1, there is considerable variation in the 
number of examinations completed in 2001 by the states we visited. 
Variation in the number of examinations consistent with the size of the 
insurance market would be expected. However, as shown in the table, the 
number of examinations completed bore little relationship to the size 
of the insurance market in each state. This comparison should not 
necessarily be taken as an indicator of the relative regulatory 
performance of the nine states we visited, because during another year 
the ranking of the states could be different. However, together with 
the variations in how states select companies for examinations and how 
they do them, this added variability helps further explain why the 
states may be reluctant to depend on other states to examine companies 
selling insurance to their citizens.

Table 1: Market Conduct Examinations Completed in 2001 Relative to 
Various Measures of the Size of the Insurance Market in Each State:

State: California; Market conduct examinations
 completed in 2001: 80; Total premium volume 
in 2001[1] ($ in millions): 95,368; Total number of licensed agents and 
brokers in 2001: 220,506; Estimated state population in 2001: (In 
thousands): 34,600.

State: Ohio; Market conduct examinations
 completed in 2001: 5; Total premium volume 
in 2001[1] ($ in millions): 39,663; Total number of licensed agents and 
brokers in 2001: 154,100; Estimated state population in 2001: (In 
thousands): 11,390.

State: Michigan; Market conduct examinations
 completed in 2001: 0[2]; Total premium volume 
in 2001[1] ($ in millions): 37,840; Total number of licensed agents and 
brokers in 2001: 86,739; Estimated state population in 2001: (In 
thousands): 10,006.

State: Missouri; Market conduct examinations
 completed in 2001: 29; Total premium volume 
in 2001[1] ($ in millions): 20,656; Total number of licensed agents and 
brokers in 2001: 91,695; Estimated state population in 2001: (In 
thousands): 5,637.

State: Maryland; Market conduct examinations
 completed in 2001: 26; Total premium volume 
in 2001[1] ($ in millions): 20,517; Total number of licensed agents and 
brokers in 2001: 72,039; Estimated state population in 2001: (In 
thousands): 5,386.

State: Indiana; Market conduct examinations
 completed in 2001: 4[3]; Total premium volume 
in 2001[1] ($ in millions): 19,208; Total number of licensed agents and 
brokers in 2001: 83,277; Estimated state population in 2001: (In 
thousands): 6,127.

State: Oregon; Market conduct examinations
 completed in 2001: 15; Total premium volume 
in 2001[1] ($ in millions): 10,750; Total number of licensed agents and 
brokers in 2001: 46,573; Estimated state population in 2001: (In 
thousands): 3,473.

State: Arkansas; Market conduct examinations
 completed in 2001: 19[4]; Total premium volume 
in 2001[1] ($ in millions): 6,919; Total number of licensed agents and 
brokers in 2001: 41,268; Estimated state population in 2001: (In 
thousands): 2,695.

State: New Mexico; Market conduct examinations
 completed in 2001: 8; Total premium volume 
in 2001[1] ($ in millions): 6,045; Total number of licensed agents and 
brokers in 2001: 28,910; Estimated state population in 2001: (In 
thousands): 1,831.

Sources: State Insurance Departments.
 NAIC's 2001 Insurance Department Resources Report.
 U.S. Census.

Note: Does not include follow-up exams or desk audits.

[1] Total premium volume for life, health, and property/casualty 
insurance.

[2] Michigan did a limited review of market conduct issues as part of 
its 37 financial examinations.

[3] Three of these were multistate examinations.

[4] Arkansas also examined 65 funeral homes that sold prepaid funeral 
insurance.

[End of table]

In addition to the variation in examinations completed, some states 
have dedicated very few resources to market analysis and market conduct 
examinations. NAIC's 2001 Insurance Department Resources Report does 
not even break out department staff assigned to market analysis, 
although financial analysts are separately identified. In addition, 14 
states, or 27 percent, did not report having any market conduct 
examiners on staff, although 4 of the 14 did report using full-time 
contract examiners. Ten states, or nearly 20 percent of all states, did 
not report having any market conduct examiners at all.

Interstate Coordination and Communication Is Inconsistent and 
Infrequent:

Our review of the nine states indicated that the practice of sharing 
examination information with other states, when it occurred, varied 
substantially from state to state. Some states coordinate their 
examination plans with other states or review other states' examination 
reports prior to going into a company, while other states do not. Even 
in states where some coordination occurs, other states' examination 
results do not generally affect examination plans. Oregon officials 
told us that there is a need for more interstate collaboration and 
reliance on examination results from other states. More coordination of 
market conduct examination plans, efforts, and results could improve 
regulation and, at the same time, reduce the regulatory burden on 
companies. Many insurance companies, particularly the largest ones, 
report that they undergo frequent, sometimes simultaneous, market 
conduct examinations. We asked 40 of the largest national insurance 
companies to provide information about their market conduct examination 
experience for the years 1999 to 2001. Of the 25 companies that 
responded, 19 were examined a total of 130 times by multiple insurance 
regulators during the 3-year period. Six were examined once or twice 
during the period, and just over half the responding companies were 
examined between one and five times. However, three companies were each 
examined 17 or more times during the 3 years, with one company 
receiving 20 examinations--an average of seven nearly every 
year.[Footnote 5]

These results appear to be consistent with concerns expressed by the 
insurance industry about excessively frequent and possibly duplicative 
market conduct examinations. One of the most common complaints from the 
25 insurers that responded to our questionnaire was that states did not 
coordinate their examinations with other states. Some companies 
reported that, on occasion, multiple states had conducted on-site 
examinations at the same time. The companies told us that such 
examinations create difficulties for them and limited the resources 
they had available to assist the examiners. For example, one insurer 
wrote, "It takes an insurer a tremendous amount of effort to prepare 
for and deal with individual state insurance department's exams (every 
one is different, plus states generally do not accept others exams in 
place of another similar exam being done). The duplication of effort is 
wasteful by the states.":

In contrast, six companies, or nearly one-quarter of those responding, 
had not been examined by any state during the period. Of these six 
companies, two were last examined in 1997 and the other four did not 
report having any market conduct examinations. These companies--like 
others that reported--are large multi-state insurance companies. Since 
in many states a primary criterion for selecting a company for 
examination is market share, these responses suggest that the 
proportion of medium-size and small insurers that rarely, if ever, 
receive a market conduct examination may be much higher.

Groups of states, as well as NAIC, have taken actions to improve the 
coordination and efficiency of the market conduct examination process. 
One effort involves improving the sharing of examination information by 
providing notice of upcoming examinations and sharing results through 
NAIC's Examination Tracking System. However, the Examination Tracking 
System is incomplete and often ignored by the state regulators, in 
part, because it has been inconvenient and difficult to use for 
scheduling and reporting the results of market conduct examinations. As 
a result, states are not fully utilizing the system. NAIC's survey of 
states' use of the Examination Tracking System concluded that no more 
than 66 percent of the states, or 36 states, consistently reported 
their market conduct or combined market conduct/financial examination 
schedules to NAIC. Moreover, only 31 percent of the states reported 
back to NAIC when the examination had been completed.

Another avenue of coordination being pursued by NAIC and some states is 
joint, or collaborative, examinations. Based on our review of nine 
states and of NAIC information, some states do conduct collaborative 
examinations. For example, Ohio officials told us that they had started 
to conduct collaborative examinations with Illinois, Nebraska, and 
Oregon. Indiana officials indicated that they had recently completed an 
examination of a large insurer jointly with another state. Such 
efforts, however, have not been consistent among states, nor is there a 
policy or standard procedure about when or how such examinations should 
occur. Furthermore, while collaborative examinations could reduce the 
total number of duplicative exams and may result in somewhat more 
efficient use of regulatory resources, they still require that each 
state send examiners into the company. In effect, collaborative 
examinations are a way for multiple states to do a market conduct 
examination of a company at the same time. Such an examination may be 
to the benefit of the company. However, if each state's examiners still 
ask for samples of files for only their own state's insurance 
consumers, the benefit may be reduced.

NAIC Has Identified Market Analysis and Examinations as Areas Needing 
Significant Improvement:

The NAIC identified the need for uniformity in market conduct 
regulation as early as the 1970s. Since then NAIC has launched a number 
of market conduct efforts intended to identify and address the issues 
and concerns caused by the lack of uniformity in states' market conduct 
examination processes, and more recently in the market analysis area. 
Although progress has been slow in establishing more uniformity in 
market conduct regulation, NAIC has had some successes. One of the 
earliest was the development of the market conduct examination handbook 
containing guidance on conducting and reporting examination results. In 
general, most states use the handbook as an examination guide, but they 
can still choose not to follow the handbook in an examination or to 
modify it. For example, although the handbook lays out the steps for 
conducting an exam, such as notice of an exam, use of sampling 
techniques, and preparation of an examination report, each state can go 
about those steps differently. Moreover, the handbook in not intended 
to cover some aspects of examinations, including examination frequency 
and company selection criteria.

One challenge to establishing voluntary uniform national standards for 
examinations and examination processes is that states are free to adopt 
the NAIC's model laws, regulations, and procedures; to modify them to 
meet their perceived needs and conditions; or even to ignore them 
entirely. Once NAIC as an organization agrees on recommendations that 
would create more uniform regulatory statutes, two additional 
challenges to uniformity remain. First, when proposed changes affect 
state law, state legislatures must approve the recommendations without 
significant changes. Second, each state insurance department must 
successfully implement the recommendations. These challenges to 
establishing voluntary uniform national standards for examinations can 
clearly be seen in the number of states adopting the model laws and 
regulation that NAIC identified in 1995 as the essential elements for a 
market conduct examination program. By 2003, only nine models had been 
adopted by more than half the states, while two models had been adopted 
by five or fewer states.

Achieving uniformity in market regulation will be a difficult process 
for NAIC and the states. However, a similar problem that existed in 
solvency regulation over a decade ago was solved by creating the 
Financial Regulation Standards and Accreditation Program. The program's 
overall goal was to achieve a consistent, state-based system of 
solvency regulation throughout the country. The program was designed to 
make monitoring and regulating the solvency of multistate insurance 
companies more consistent by ensuring that states adopt and adhere to 
agreed-upon standards, which establish the basic recommended practices 
for an effective regulatory department. To be accredited, states had to 
show that they had adopted specific solvency laws and regulations that 
protected insurance consumers, established defined financial analysis 
and examination processes, and used appropriate organizational and 
personnel practices. While the quality of regulation is still not 
consistent, the Accreditation Program has improved financial regulation 
across the states. As a result, states are now willing, in most cases, 
to depend on the solvency regulation of other states.

While the process used by state insurance regulators to oversee 
solvency could provide a model for oversight of market conduct as well, 
there are structural differences in market regulation that will 
undoubtedly affect the ultimate design of an improved market conduct 
oversight system. These differences will have to be addressed by NAIC 
and the states in order to move forward. First, market conduct 
oversight involves many different activities and operations of 
insurance companies. This fact has broad implications for regulatory 
consistency and mutual dependence, including requirements for the 
necessary training of market conduct examiners and analysts.

Second, regulators told us that life insurers tend to use a company-
wide business plan and organizational structure. That is, a life 
company's operations tend to be relatively consistent across the entire 
company. Property-casualty insurers, on the other hand, tend to use a 
regional business model and organizational structure. As a result, a 
property-casualty insurer's operations could differ, perhaps 
substantially, from region to region. Clearly, the life insurer model 
is more directly amenable to domiciliary-state oversight than the 
property-casualty model. However, any regional or state-by-state 
variances in a company's operations and procedures would reduce the 
effectiveness of domiciliary-state oversight. Some aspects of market 
conduct oversight will always be state (or region) specific because of 
the differences between life and property-casualty insurers, but also 
because there will always be differences between some of the specific 
laws and requirements of individual states. As a result, even when 
greater uniformity of regulatory oversight is achieved, it is likely 
that states will always have to devote some attention to the activities 
of insurers not domiciled in their state. Nevertheless, if a state 
insurance department knew that the domiciliary state was doing 
consistent market oversight on the company with agreed-upon processes, 
appropriate scope, and well-trained examiners and analysts, the level 
of attention needed, even for a property-casualty company, could be 
substantially lessened. Finally, even to the extent that properly 
designed and competently performed market conduct oversight can 
effectively monitor and regulate insurance company practices, it will 
extend to the sales practices of insurance agents only to the extent 
that the company takes responsibility for and exercises control of the 
behavior of the agents that sell its products.

Preliminary Observations:

In the current environment of market regulation, most insurance 
regulators believe they need to oversee the market behavior of all 
companies selling insurance in their state because they cannot depend 
on the oversight of the other states. State regulators think this way 
in part because important elements of market regulation are 
characterized by a lack of even the most fundamental consistency. 
Formal and rigorous market analysis is in its infancy among state 
regulators, and whether, when, and how states do market conduct 
examinations vary widely. As a result, state regulators are now using 
the resources that they have in the area of market analysis and 
examinations inefficiently. Regulators from different states examine 
some insurers often, while other insurers are examined infrequently or 
not at all. More importantly, because market analysis is weak, 
regulators may not be finding and focusing on the companies that most 
need to have an examination.

We support the goal of increasing the effectiveness of market conduct 
regulation through the development and implementation of consistent, 
nationwide standards for market analysis and market conduct 
examinations across the states in order to better protect insurance 
consumers. The emphasis placed on these issues by NAIC has increased 
substantially over the last 3 years. We believe that NAIC has taken a 
first step in the right direction. Much work, however, remains, as NAIC 
and the states have not yet identified or reached agreement on 
appropriate laws, regulations, processes, and resource requirements 
that will support the goal of an effective, uniform market oversight 
program. Such a program, consisting of strong market analysis and 
effective market conduct examinations, will facilitate the development 
of an atmosphere of increasing trust among the states. However, at 
present it remains uncertain whether the NAIC and the states can agree 
on and implement a program that will accomplish this goal.

Madam Chairwoman, this concludes my statement. I would be pleased to 
answer any questions you or other members of the subcommittee may have 
at this time.

FOOTNOTES

[1] The National Association of Insurance Commissioners is comprised of 
the insurance commissioners of the 50 states plus the District of 
Columbia, Puerto Rico, and the United States Territories. The 
commissioners promulgate model (recommended) laws and regulations for 
consideration by the states and provide support services for the state 
insurance departments. NAIC meetings also provide a venue for 
discussion of issues that are of interest to all.

[2] A desk audit involves a review of company files at the department 
without physically going to the company. 

[3] Not all licensed companies in a state are actively selling 
insurance. For example, some companies with existing business may be 
going out of business although still servicing existing customers (in 
run-off) or in liquidation. These companies may still have some active 
policies in the state, but are not selling any new business.

[4] States generally have the authority to do a market conduct 
examination on any company that sells insurance in the state.

[5] We did not verify the companies' responses with state regulators. 
Moreover, we have no basis for evaluating the states' reasons for 
selecting specific companies to examine.