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DOI Certificate Bulletins Are Not "Regulations"

Richard Scislowski | September 1, 2011

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It is often asserted that recent changes in standard Association for Cooperative Operations Research and Development (ACORD) and Insurance Services Office, Inc. (ISO), certificates (to remove the "endeavor to" language, for example) were made to bring them into compliance with new "regulations." This is not accurate.

A regulation is a formal rule established by an administrative agency that carries the force of law, just like a statute enacted by the state legislature. If a state administrative agency did enact a regulation dealing with certificates of insurance, then ACORD and ISO would be required to modify their standard forms in response.

However, in most instances, what ACORD and ISO have been responding to is state department of insurance (DOI) bulletins that have been issued in about 30 states addressing the uses of certificates of insurance. These certificate bulletins generally say that certificates may not be used to amend the underlying policy without prior DOI approval, that using an unapproved certificate to set forth terms that are not reflected in the policy may be considered a misrepresentation, and that doing so could subject an agent or broker to administrative, civil, or even criminal penalties.

DOI certificate bulletins probably do not qualify as regulations. To understand why that is so, consider how state governments are organized. Like the federal government, they are established on the principle of separation of powers, with each of the three branches of government playing a distinct role. The power to make law is given to the legislative branch. The power to execute law is given to the executive branch. What that means is that components of the executive branch or other administrative agencies, such as state DOIs, do not have any inherent law-making authority.

For executive departments and other administrative agencies to enact rules or regulations that carry the force of law, state legislatures commonly enact a statute to delegate legislative power to them. Typically, states adopt a general administrative procedure act (APA) or a specific enabling statute that sets forth the rule-making procedures that the executive department or administrative agency must follow to use that delegated power. Usually, they are required to publish proposed regulations, allow a period for comment, hold public hearings, and perhaps submit the final regulation to the legislature for approval.

It does not appear as if any rule-making procedures were followed in connection with any of the DOI certificate bulletins. Therefore, they probably do not qualify as regulations, do not carry the force of law, and are not binding on the citizens of that state or the courts. They merely communicate the DOI's interpretation of state law.

Recent Case Law: Montague v. Dixie National Life Ins.

A recent federal case bears that out. In Montague v. Dixie National Life Ins. Co., U.S. Dist. Ct. No. 3:09–687–JFA, 2010 U.S. Dist. LEXIS 17535 (D.S.C., Feb. 26, 2010), a claimant alleged that lawyers for two health insurers wrote a draft of a DOI bulletin for the director's signature, which set forth an interpretation of a South Carolina statute, and that the insurers used the bulletin as "cover" to thwart payments under the claimant's policy. She sued the DOI, seeking a declaration that the bulletin was an ultra vires act (beyond the scope of legitimate authority) and therefore void.

The district court, however, dismissed her suit for lack of federal jurisdiction. It held that, because the director's issuance of a bulletin by itself had no legal effect whatsoever, her complaint against the DOI did not qualify as a "case or controversy" under the U.S. Constitution. Here is the court's discussion.

Bulletin 2008–15 was promulgated, ostensibly, pursuant to the power of [the Director of the DOI], in his official capacity, to regulate the insurance industry in South Carolina and apprise the industry of any relevant changes in the law. Assuming, without deciding, that [the Director] has the power to issue such a bulletin, the court must determine whether the bulletin has the ability to affect the rights and legal relations of the parties.

The South Carolina Administrative Procedures Act (the "APA"), S.C. Code Ann. § 1–23–10(4)(2005), generally governs whether actions taken by state agencies carry the force of law. The APA specifies that "policy or guidance issued by an agency" do not have the force of law while "regulations" do. [Citations.] A regulation comprises "each agency statement of general public applicability that implements or prescribes law or policy or practice requirements of any agency." [Citation.] South Carolina requires the following to enact a regulation:

In order to promulgate a regulation, the APA generally requires a state agency to give notice of a drafting period during which public comments are accepted on a proposed regulation; conduct a public hearing on the proposed regulation overseen by an administrative law judge or an agency's governing board; possibly prepare reports about the regulation's impact on the economy, environment, and public health; and submit the regulation to the Legislature for review, modification, and approval or rejection.

[Citation.] [The] South Carolina Supreme Court has explicitly found that "[a]n Interpretive Bulletin is not binding on the courts" and do[es] not have the force of law. Garris v. Cincinnati Ins. Co., 311 S.E.2d 723, 726 (S.C. 1984) (superceded by statute on other grounds).

No indication appears in [the claimant's] complaint or in her response to [the DOI's] motion to dismiss that the above procedure was followed in the creation and issuance of Bulletin 2008–15. Instead, Bulletin 2008–15 appears to be a mere statement of policy guidance; lacking force of law and expressly contemplated in [the APA]. No facts in the complaint allow the court to infer that the procedures set forth in the APA preceded the issuance of Bulletin 2008–15 nor does [the claimant] direct the court to an express grant of authority from the legislature to issue the bulletin. In the absence of facts pled to establish that Bulletin 2008–15 carries the force of law, the court finds that it cannot affect the legal relationship between any of the parties to this case.

Most State Insurance Departments Acknowledge Lack of Legal Authority

Most state departments of insurance will admit that unilateral bulletins, memos, circular letters, advisory opinions, etc., issued without following proper rule-making procedures do not have any legal effect. For example, the Colorado Division of Insurance states the following in a consumer information section of its website.

Regulations and Bulletins help insurers and consumers understand the specifics of how insurers must conduct business in Colorado, and set forth standards and procedures for conducting business.

Regulations interpret but do not exceed the scope of the more general statutes passed by the Colorado General Assembly.

Bulletins express the Division's interpretation of or position on existing law, including both regulations and statutes, but do not have the force of law.

There are exceptions. California has a specific statute, Cal. Ins. Code § 10507.5(d), which says, in pertinent part, that bulletins issued by the commissioner establishing mandatory contents of "guaranteed living benefits" policies "shall have the same force and effect, and may be enforced by the commissioner to the same extent and degree, as regulations issued by the commissioner until the time that the commissioner issues additional or amended regulations." Here, the legislature has delegated more power to the insurance commissioner, elevating his or her unilateral bulletins to the status of true regulations. But that arrangement is highly unusual. In most other states, an insurance commissioner is not a lawmaker.


What does all this mean? It means that the DOI certificate bulletins that have been issued unilaterally without following proper rule-making procedures set forth the DOI's interpretation of state law, but whatever they say is probably not legally binding. If the DOI takes disciplinary action against an insurer or an agent for acting contrary to a directive in such a bulletin, the DOI's interpretation of state law may be challenged in state court. It also means that most of the changes to standard ACORD and ISO certificates were not actually compelled by law.

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