Alert Edition September 2021

Welcome to the September 2021 edition of the FORC Alert. If you have any colleagues that may be interested in this publication, please forward it on. There is a link on the Alerts main page where they can subscribe to receive FORC Alerts automatically.

Regards,
C. Ignacio Matos, Esq., FORC Alert Co-Editor
Ryan Smart, Esq., FORC Alert Co-Editor
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Category(s): National - 09/24/2021

Agencies Set Forth Interim Final Rules Implementing Certain Provisions of the No Surprises Act

On July 13, 2021, the Personnel Management Office, the Internal Revenue Service, the Employee Benefits Security Administration, and the Health and Human Services Department (Agencies) published interim final rules  to implement certain provisions of the federal No Surprises Act, which was enacted as part of the Consolidated Appropriations Act, 2021. The regulations are effective on September 13, 2021. The regulations are generally applicable for plan years (in the individual market, policy years) beginning on or after January 1, 2022; however, the HHS-only regulations that apply to health care providers, facilities, and providers of air ambulance services are applicable beginning on January 1, 2022. Additionally, the OPM-only regulations that apply to health benefits plans are applicable to contract years beginning on or after January 1, 2022. The agencies are accepting comments for consideration until 5:00 p.m. on September 7, 2021. Fact sheets on these interim final rules can be found here  and here.

Fred E. Karlinsky, Esq. - GREENBERG TRAURIG, P.A., (954) 768-8278 , karlinskyf@gtlaw.com

Category(s): National - 09/24/2021

GAO Urges Congress to Consider Updating NFIP Mandatory Purchase Requirement

On July 30, 2021, the U.S. Government Accountability Office (GAO) published recommendations on FEMA's National Flood Insurance Program (NFIP), including the implementation of the mandatory purchase requirement. Currently, homeowners with federally regulated mortgages are required by the NFIP to purchase flood insurance if they are located in areas of high flood risk. These areas are determined by NFIP's floodplain maps which, according to GAO's report, are outdated. The GAO recommends that Congress should consider requiring FEMA to use current flood risk data to determine which properties should be subject to the mandatory purchase requirement. The full GAO report can be accessed here.

Fred E. Karlinsky, Esq. - GREENBERG TRAURIG, P.A., (954) 768-8278 , karlinskyf@gtlaw.com

Category(s): National - 09/24/2021

HHS Extends COVID-19 Public Health Emergency

As a result of the COVID-19 pandemic, the Department of Health and Human Services (HHS) renewed the public health emergency on July 19, 2021 after determining that an emergency still exists nationwide. This public health emergency has persisted since January 27, 2020 and has been previously renewed on April 21, 2020, July 23, 2020, October 2, 2020, January 7, 2021, and April 15, 2021. Click here  to view the renewal of the public health emergency, which includes links to further emergency and response information.

Fred E. Karlinsky, Esq. - GREENBERG TRAURIG, P.A., (954) 768-8278 , karlinskyf@gtlaw.com

Category(s): National - 09/24/2021

NCOIL Special Committee on Race in Insurance Underwriting Adopts Resolutions

During the National Council of Insurance Legislators (NCOIL) Summer National Meeting in Boston on July 14-17, 2021, Senator Neil Breslin (D-NY), Chair of the NCOIL Special Committee on Race in Insurance Underwriting, and Representative Matt Lehman (R-IN), NCOIL President, introduced a series of Resolutions: (1) Resolution Regarding the Use of Certain Rating Factors; (2) Resolution Regarding the Use of Artificial Intelligence in Underwriting; and (3) Resolution Regarding Insurance Score Transparency. The Resolutions were adopted by the Special Committee, resulting in the subsequent conclusion and sunset of the Committee’s work. The Resolutions can be viewed here.  The NCOIL press release and statement on the Resolutions can be found here.

Fred E. Karlinsky, Esq. - GREENBERG TRAURIG, P.A., (954) 768-8278 , karlinskyf@gtlaw.com

Category(s): National - 09/24/2021

NIST to Develop an AI Risk Management Framework

On July 29, 2021, the National Institute of Standards and Technology (NIST) issued a request for information  to help develop an Artificial Intelligence Risk Management Framework (AI RMF). The AI RMF is expected to serve as a guidance document to help manage the risks imposed by AI and answers a direction from Congress  to develop the framework. The NIST’s request for information was extended  on August 24, 2021, announcing responses are now due by September 15, 2021. Further information can be found here.

Fred E. Karlinsky, Esq. - GREENBERG TRAURIG, P.A., (954) 768-8278 , karlinskyf@gtlaw.com

Category(s): Alabama - 09/26/2021

ACA Rate Changes for Alabama Policies in the Individual Market

The Affordable Care Act (ACA) requires that insurers planning to increase plan premiums submit their rates to the Alabama Department of Insurance for review.
The rate review process is designed to improve insurer accountability and transparency. It ensures that experts evaluate whether the proposed rate increases are based on reasonable cost assumptions and solid evidence. The ACA also requires that a summary of rate review justifications and results be accessible to the public in an easily understandable format. The Federal HealthCare.gov Rate Review website is designed to meet that mandate. For more information, please click here.  
The information is provided in the tables here  along with the links to the redacted actuarial memorandums, which support these changes. The rate changes are being proposed and reviewed by the Alabama Department of insurance (ALDOI).  As soon as they are final, they may be purchased on the Federal Exchange or through private agents and brokers. The programs will be effective beginning on January 1, 2022. 
If you wish to submit a comment, please use the form available here.

Stephen W. Still, Esq. - BALCH & BINGHAM LLP, (205) 488-5512 , sstill@balch.com

Category(s): Alabama - 09/24/2021

Alabama Department of Insurance: Bulletin No. 2021-07

Included in Section 6 of newly issued Bulletin No. 2021-07,  the Alabama Department of Insurance issued the following guidance for attorneys making filings under the Insurance Holding Company System Regulatory Act.
Attorneys are requested to include their Alabama State Bar identification number on all filings. An attorney not licensed in Alabama may appear as counsel Pro Hac Vice or Authorized House Counsel by complying with Rule VII of the Rules Governing Admission to the Alabama State Bar. For more information, please visit the Bar’s website.

Stephen W. Still, Esq. - BALCH & BINGHAM LLP, (205) 488-5512 , sstill@balch.com

Category(s): Florida - 09/24/2021

Citizens Board Approves Rates Adjustments for February

The Florida Office of Insurance Regulation (OIR) previously approved a rate increase for the Citizens Property Insurance Corporation (Citizens) which went into effect for new and renewal policies on August 1, 2021. On July 14, 2021, the Citizens Board of Governors approved an additional 2.3% increase to average premiums that would take effect in February 2022. If approved by the OIR, policies renewing after February 1, 2022 would now see average increases of 7.6%. The Board’s decision took recent legislation into account, which is intended to curb Citizens’ overwhelming policy growth. Further information is outlined within Citizens’ press release.

Fred E. Karlinsky, Esq. - GREENBERG TRAURIG, P.A., (954) 768-8278 , karlinskyf@gtlaw.com

Category(s): Florida - 09/24/2021

DWC Releases Updated Report on Effects of COVID-19 on Florida’s Workers’ Comp System

In August, the Florida Department of Financial Services Division of Workers’ Compensation (DWC) released an updated data summary report outlining the effects of COVID-19 on Florida’s workers’ compensation system. The DWC intends to continually update this report as new data is reported and analyzed. The report, as of July 31, 2021, can be found here.

Fred E. Karlinsky, Esq. - GREENBERG TRAURIG, P.A., (954) 768-8278 , karlinskyf@gtlaw.com

Category(s): Florida - 09/24/2021

DWC Revises Utilization and Reimbursement Dispute Rules

Effective August 2, 2021, the Florida Department of Financial Services Division of Workers’ Compensation (DWC) revised rules within Chapter 69L-31, Utilization and Reimbursement Dispute Rules. The updated forms for 69L-31.003, F.A.C. , Petition for Resolution of Reimbursement Dispute (DFS Form 3160-0023), and 69L-31.004 , F.A.C., Carrier Response to Petition for Resolution of Reimbursement Dispute (DFS Form 3160-0024), are available on the DWC’s Forms Page , under the 69L-31 dropdown. The revised rules within Chapter 69L-31 which became effective on August 2, 2021 are as follows:
•	69L-31.002 	Definitions	
•	69L-31.003 	Petition for Resolution of Reimbursement Dispute Form and Requirements	
•	69L-31.004 	Carrier Response to Petition for Resolution of Reimbursement Dispute Form and Requirements
•	69L-31.005 	Written Determinations	
•	69L-31.006 	Consolidation of Petitions (Repealed)
•	69L-31.007 	Service of Petition on Carrier and All Affected Parties
•	69L-31.008 	Computation of Time
•	69L-31.009 	Carrier Response Requirements (Repealed)
•	69L-31.010 	Effect of Non-Response by Carrier (Repealed)
•	69L-31.011 	Complete Record (Repealed)
•	69L-31.012 	Joint Stipulation of the Parties (Repealed)
•	69L-31.013 	Petition Withdrawal
•	69L-31.014 	Overutilization Issues Raised in Reimbursement Dispute Resolution (Repealed)

Fred E. Karlinsky, Esq. - GREENBERG TRAURIG, P.A., (954) 768-8278 , karlinskyf@gtlaw.com

Category(s): Florida - 09/24/2021

Florida Supreme Court Issues Opinion Shielding Top Executives from Depositions

In a 6-1 decision  on August 26, 2021, the Florida Supreme Court adopted an amendment to Florida Rule of Civil Procedure 1.280, No. SC21-929, effective immediately, which extended the “Apex Doctrine” to corporate executives. The doctrine has long provided ranking government officials protections against being required to testify about government action, if they can demonstrate no direct knowledge of the facts in dispute. The Court said the decision will help prevent harassment of corporate leaders. Because the amendment was not previously published for comment, interested parties have until November 9, 2021 to file comments or submit requests for oral argument with the Court; however, the filing of a motion for rehearing will not alter the effective date of the amendment.

Fred E. Karlinsky, Esq. - GREENBERG TRAURIG, P.A., (954) 768-8278 , karlinskyf@gtlaw.com

Category(s): Florida - 09/24/2021

Governor Declares State of Emergency for Tropical Depression Fred

On August 13, 2021, Governor Ron DeSantis issued Executive Order 21-190  regarding Tropical Depression Fred, declaring a state of emergency for the following counties: Bay, Calhoun, Citrus, Dixie, Escambia, Franklin, Gadsden, Gilchrist, Gulf, Holmes, Jackson, Jefferson, Lafayette, Leon, Levy, Liberty, Manatee, Okaloosa, Santa Rosa, Taylor, Wakulla, Walton, and Washington. The Director of the Division of Emergency Management was directed to execute the State's Comprehensive Emergency Plan and other response, recovery, and mitigation plans as necessary, and the Emergency Management Assistance Compact (EMAC) was invoked. The state of emergency expires on October 12, 2021, unless extended.

Fred E. Karlinsky, Esq. - GREENBERG TRAURIG, P.A., (954) 768-8278 , karlinskyf@gtlaw.com

Category(s): Florida - 09/24/2021

Governor Declares State of Emergency for Tropical Storm Elsa

On July 3, 2021, Governor Ron DeSantis issued Executive Order 21-150  regarding Tropical Storm Elsa, declaring a state of emergency for fifteen counties. The Director of the Division of Emergency Management was directed to execute the State's Comprehensive Emergency Plan and other response, recovery, and mitigation plans as necessary, and the Emergency Management Assistance Compact (EMAC) was invoked. The Governor issued Executive Orders 21-151  and 21-152  on July 5, 2021 and July 6, 2021, respectively, which added and removed certain counties from the emergency declaration. The state of emergency expires on September 1, 2021, unless extended.

Fred E. Karlinsky, Esq. - GREENBERG TRAURIG, P.A., (954) 768-8278 , karlinskyf@gtlaw.com

Category(s): Georgia - 09/24/2021

Democrat Insurance Claims Adjuster Announces Candidacy for 2022 Insurance Commissioner Race

In August 2021, Derrick J. Wilson, announced to his Democratic candidacy for this election. Mr. Wilson is a Senior Account Manager at Guardian Facility Management and majority owner of Guardian Financial Services, Inc., a tax preparation and bookkeeping company. Derrick is also a licensed insurance claims adjuster.

Brian T. Casey, Esq. - LOCKE LORD LLP, (404) 870-4638 , bcasey@lockelord.com

Category(s): Georgia - 09/24/2021

Georgia Insurance Commissioner Issues Updated COVID-19 Delta Variant Directives Because of Hospitals Services Demand

In August 2021, the Georgia Insurance Commissioner issued Directive 21-EX-1 (August 16, 2021), which reissued Directive 20-EX-1 (December 2020) for thirty days, which reinstates the suspension of preauthorization requirements for inpatient hospital services, and Directive 21-EX-2 (August 17, 2021), which imposes a suspension on preauthorization requirements for post-acute placements.

Brian T. Casey, Esq. - LOCKE LORD LLP, (404) 870-4638 , bcasey@lockelord.com

Category(s): Georgia - 09/26/2021

Georgia Office of Commissioner of Insurance and Safety Fire Issues Bulletin 21-EX-3

In light of the severity of the ongoing COVID-19 Delta variant surge in Georgia, on September 15, 2021, Commissioner John F. King extended Directive 21-EX-1 and Directive 21-EX-2 (as described below) through September 30, 2021, subject to further evaluation.
Click here  for more information about Directive 21-EX-1 
Click here  for more information about Directive 21-EX-2

Tony Roehl, Esq. - BAKER HOSTETLER LLP, (404) 256-8419 , troehl@bakerlaw.com

Category(s): Georgia - 09/24/2021

Suspended Georgia Insurance Commissioner Convicted

On July 22, 2021, a jury convicted Jim Beck, Georgia’s Suspended Insurance Commissioner since May of 2019, on all 37 counts in a federal indictment, which included mail fraud, money laundering and aiding in the filing of false income tax returns, related to his former tenure as the head of the Georgia Underwriting Association, the state’s FAIR Plan. His sentencing is scheduled for early October 2021.

Brian T. Casey, Esq. - LOCKE LORD LLP, (404) 870-4638 , bcasey@lockelord.com

Category(s): New York - 09/28/2021

Superintendent Lacewell Announced that DFS has Issued New Guidance on Ransomware Prevention

Ransomware Crisis Threatens All Financial Services Companies DFS Guidance Identifies Key Cybersecurity Measures to Reduce Risk of Ransomware Attacks
To read the press release from Superintendent Lacewell, please click here.  

As required by Section 409 (c) of the New York State Financial Services Law, a report summarizing the Department’s activities to investigate and combat health insurance fraud, including no-fault fraud, which totaled 85 percent of health insurance fraud reports and more than half of reports of fraud of all types is now available covering the year 2020. Click here  to read the Annual Report on Health Insurance Fraud 2020.

Frederick J. Pomerantz, Esq. - INSURANCE LEGAL & REGULATORY CONSULTING, PLLC, (516) 297-3101 , PomerantzF35@gmail.com

Category(s): New York - 09/28/2021

Temporary Adjuster Permits Made Available Following Severe Property Damage Resulting From Tropical Depression Ida

To facilitate the settlement of claims resulting from a catastrophe or an emergency, an individual not licensed as an independent adjuster in New York, but otherwise qualified to adjust claims, were empowered to obtain a Temporary Adjuster Permit if sponsored by a New York authorized insurance company. This unique response by the New York State Department of Financial Services  ("DFS") originated immediately following, and as a direct result of, extreme property damage (among others damage to homes and personal property  and damage to the infrastructure of the New York City subways and commuter system) caused by Tropical Depression Ida's severe rain and wind. The rain dropped up to 9 inches of rain in a short timeframe overnight, severely impacting residents, business owners and transportation infrastructure in the state on Wednesday, September 1, 2021, in particular, property damage suffered in homes, small business and public transit, including the New York City subways, tunnels and public transit serving the suburbs adjacent to the City. Many businesses were closed Thursday and many commuters were unable to access their places of employment that day and, to a lesser extent, Friday. For more information on Temporary Independent Adjuster's Permits (for Catastrophes) please click here.  For more information on Insurance Circular Letter No. 8 (2021), please click here. 
Multiple roadways across New York City, Long Island and the lower Mid-Hudson were flooded and impassible at times, with people rescued from vehicles trapped in floodwaters. Rainfall rates of up to three inches per hour, the highest ever recorded by the NYS Mesonet, were experienced across multiple locations, with rainfall totals ultimately exceeding eight inches in Central Park, nine inches in suburban Glen Cove, LI and more than six inches at LaGuardia Airport. To read the press release from the New York State Department of Financial Services, please click here.

Frederick J. Pomerantz, Esq. - INSURANCE LEGAL & REGULATORY CONSULTING, PLLC, (516) 297-3101 , PomerantzF35@gmail.com

Category(s): Rhode Island - 09/24/2021

R.I. Court Reverses Regulators’ Delegation of Authority to Private Actors

The Rhode Island Superior Court’s recent decision in East Bay Auto, Inc. et al. v. Department of Business Regulation, et al. may mark a significant change in the complaint hearing process used for many years in Rhode Island on similar issues, due to a finding of improper delegation of authority by the Rhode Island Department of Business Regulation. The Court wrote that, in this case “it was not the Commissioner that maintained the action, sought witnesses, or introduced evidence. Despite the Legislature’s clear delegation of authority to [RIDBR] alone— specifically, the Commissioner—to prosecute matters related to unfair competition and practices, the Commissioner allowed the [auto body shops] to prosecute the case before the Hearing Officer, introduced evidence, and acted—in all respects—as the Commissioner’s surrogate in the matter.” The RIDBR’s decision to allow private complainants to prosecute the matter was held an improper grant of authority, as the RIDBR “may not delegate to a third-party complainant its power to prosecute a matter arising under [the relevant statute]” and doing so “contravenes the General Assembly’s intent to vest quasi-judicial authority in [RIDBR.]” As a result, the administrative decision below was found to be “procedurally flawed and in violation of the processes allowed by statute.” Partridge Snow & Hahn (Travis J. McDermott, Esq.) represented several carriers.

John J. Partridge, Esq. - PARTRIDGE SNOW & HAHN LLP, (401) 861-8200

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