Pandemic Risk Insurance Act of 2021

To establish a Pandemic Risk Reinsurance Program, and for other purposes. 1. Short title This Act may be cited as the Pandemic Risk Insurance Act of 2021 2. Purpose The purpose of this Act is to establish a Federal program that provides for a transparent system of shared public and private compensation for property and casualty insurance losses resulting from a pandemic or outbreak of communicable or infectious disease, in order to— (1) protect consumers by addressing market disruptions and ensure the continued widespread availability and affordability of property and casualty insurance for losses resulting from a pandemic or outbreak of communicable or infectious disease; and (2) allow for a transitional period for the private markets to stabilize, resume pricing of such insurance, and build capacity to absorb any future losses, while preserving State insurance regulation and consumer protections. 3. Definitions In this Act, the following definitions shall apply: (1) Covered public health emergency (A) In general The term covered public health emergency (i) for which the Secretary of Health and Human Services determines, or renews or extends a determination that, a public health emergency exists under section 319 of the Public Health Service Act ( 42 U.S.C. 247d (ii) that is certified by the Secretary as a covered public health emergency for purposes of this Act. (B) Nondelegation The Secretary may not delegate or designate to any other officer, employee, or person, any certification under subparagraph (A)(ii) of whether, during the effective period of the Program, a covered public health emergency exists. (2) Affiliate The term affiliate (3) Business interruption insurance The term business interruption insurance (4) Commercial property insurance The term commercial property insurance (5) Control (A) In general An entity has control (i) the entity directly or indirectly or acting through 1 or more other persons owns, controls, or has power to vote 25 percent or more of any class of voting securities of the other entity; (ii) the entity controls in any manner the election of a majority of the directors or trustees of the other entity; or (iii) the Secretary determines, after notice and opportunity for hearing, that the entity directly or indirectly exercises a controlling influence over the management or policies of the other entity. (B) Rule of construction An entity, including any affiliate thereof, does not have control control (6) Department The term Department (7) Economic recovery period (A) In general The term economic recovery period (B) Reset If during the economic recovery period, a covered public health emergency is certified which applies to the whole of the country or to States comprising at least 40 percent of the country’s population, the economic recovery period will be extended until December 31 of the 5th year following such certification. (8) Event The term event (9) Event cancellation insurance The term event cancellation insurance (A) cancellation, abandonment, delay, or rescheduling (whether full or partial) of an event; or (B) non-appearance at an event of a principal speaker or performer or unavailability of an essential element, including covered key talent or cast members, required for achievement of the event’s purpose. (10) Insured loss The term insured loss means any loss resulting from an outbreak of infectious disease or pandemic for which a covered public health emergency is certified that is covered by primary or excess property and casualty insurance issued by an insurer if such loss occurs— (A) within the United States; and (B) during the period that the covered public health emergency for such area is in effect. (11) Insurer The term insurer means any entity, including any affiliate thereof— (A) that is— (i) licensed or admitted to engage in the business of providing primary or excess insurance in any State; (ii) not licensed or admitted as described in clause (i), if it is an eligible surplus line carrier listed on the Quarterly Listing of Alien Insurers of the NAIC, or any successor thereto; (iii) approved for the purpose of offering property and casualty insurance by a Federal agency in connection with maritime, energy, or aviation activity; (iv) a State residual market insurance entity or State workers’ compensation fund; or (v) any other entity described in section 4(f), to the extent provided in the rules of the Secretary issued under section 4(f); (B) that receives direct earned premiums for any type of commercial property and casualty insurance coverage, other than in the case of entities described in subsections (d) and (f) of section 4; and (C) that meets any other criteria that the Secretary may reasonably prescribe. Such term includes captive insurers and other self-insurance arrangements by municipalities and other entities (such as workers' compensation self-insurance programs and State workers' compensation reinsurance pools). (12) NAIC The term NAIC (13) Parametric insurance facility The term parametric insurance facility (14) Parametric non-damage business interruption insurance The term parametric non-damage business interruption insurance (A) a certification of covered public health emergency; and (B) the State or local government in which the insured operates has issued a closure order applicable to organizations with the policyholder’s NAICS code. (15) Participating insurer The term participating insurer (16) Person The term person (17) Program The term Program (18) Property and casualty insurance The term property and casualty insurance (A) means commercial lines of property and casualty insurance, including excess insurance, workers’ compensation insurance, business interruption insurance, commercial general liability insurance, directors and officers liability insurance, and event cancellation insurance; and (B) does not include— (i) Federal crop insurance issued or reinsured under the Federal Crop Insurance Act ( 7 U.S.C. 1501 et seq. (ii) private mortgage insurance (as such term is defined in section 2 of the Homeowners Protection Act of 1998 ( 12 U.S.C. 4901 (iii) financial guaranty insurance issued by monoline financial guaranty insurance corporations; (iv) health or life insurance, including group life insurance; (v) flood insurance provided under the National Flood Insurance Act of 1968 ( 42 U.S.C. 4001 et seq. (vi) reinsurance or retrocessional reinsurance; (vii) commercial automobile insurance; (viii) burglary and theft insurance; or (ix) surety insurance. (19) Secretary The term Secretary (20) State The term State (21) United states The term United States (22) Rule of construction for dates With respect to any reference to a date in this Act, such day shall be construed— (A) to begin at 12:01 a.m. on that date; and (B) to end at midnight on that date. 4. Pandemic Risk Reinsurance Program (a) Establishment of program (1) In general There is established in the Department of the Treasury the Pandemic Risk Reinsurance Program. (2) Authority of the secretary Notwithstanding any other provision of State or Federal law, the Secretary shall administer the Program, and shall pay the Federal share of compensation for insured losses in accordance with subsection (e). (3) Mandatory participation Each entity that meets the definition of an insurer under this Act shall participate in the Program. (4) Treatment of existing policies Except as provided under section 6, this Act may not be construed to affect any policy for property and casualty insurance in force on the date of the enactment of this Act. (b) Conditions for federal payments No payment may be made by the Secretary under this section with respect to an insured loss that is covered by an insurer, unless— (1) except in the case of a parametric non-damage business interruption insured loss, the person that suffers the insured loss, or a person acting on behalf of that person, files a claim with the insurer; (2) the insurer provides clear and conspicuous disclosure to the policyholder of the premium charged for insured losses covered by the Program and the Federal share of compensation for insured losses under the Program— (A) in the case of any policy that is issued before the date of enactment of this Act, not later than 90 days after that date of enactment; (B) in the case of any policy that is issued within 90 days of the date of enactment of this Act, at the time of offer and renewal of the policy; and (C) in the case of any policy that is issued more than 90 days after the date of enactment of this Act, on a separate line item in the policy, at the time of offer and renewal of the policy; (3) the insurer processes the claim for the insured loss in accordance with appropriate business practices, and any reasonable procedures that the Secretary may prescribe; and (4) the insurer submits to the Secretary, in accordance with such reasonable procedures as the Secretary may establish— (A) a claim for payment of the Federal share of compensation for insured losses under the Program; (B) written certification— (i) of the underlying claim; and (ii) of all payments made for insured losses; and (C) certification of its compliance with the provisions of this subsection. (c) Mandatory availability of coverage for covered public health emergencies (1) In general During each calendar year, each entity that meets the definition of an insurer under this Act— (A) shall make available, in all of its property and casualty insurance policies, coverage for insured losses; and (B) shall make available property and casualty insurance coverage for insured losses that does not differ materially from the terms, conditions, amounts, limits, deductibles, or self-insured retentions and other coverage limitations applicable to losses arising from events other than public health emergencies. (2) Parametric non-damage business interruption insurance coverage (A) In general During each calendar year, each entity that meets the definition of an insurer under this Act shall in addition make available, in all its commercial property insurance policies, parametric non-damage business interruption insurance coverage for insured losses. (B) Alternatives An insurer subject to the requirement in subparagraph (A) may satisfy the requirement by arranging for the parametric non-damage business interruption insurance coverage to be made available to the insured by either— (i) an affiliate of the insurer; or (ii) a parametric insurance facility in which the insurer participates. (C) Criteria The Secretary shall issue regulations, as soon as practicable after the date of enactment of this Act, that establish eligibility criteria and other standards for parametric insurance facilities. In general— (i) such facilities may be established and governed subject to supervision by the insurance commissioner of the domiciliary State and if qualified by the Secretary will be permitted to provided coverage in all States; (ii) insurer capital contribution to a facility may be in the form of surplus note or similar instrument which may bear a coupon but subject to all policyholder claims; and (iii) a facility may, subject to regulatory approval and any limitations in the Secretary’s regulations, distribute profits beginning after the expiration of the economic recovery period. (3) Supplemental business interruption coverage Nothing in this section shall be construed to prohibit or limit the ability of an insurer to provide supplemental business interruption insurance coverage in addition to the coverage made available under paragraph (2). (d) State residual market insurance entities (1) In general The Secretary shall issue regulations, as soon as practicable after the date of enactment of this Act, that apply the provisions of this Act to State residual market insurance entities and State workers’ compensation funds. (2) Treatment of certain entities For purposes of the regulations issued pursuant to paragraph (1)— (A) a State residual market insurance entity that does not share its profits and losses with private sector insurers shall be treated as a separate insurer; and (B) a State residual market insurance entity that shares its profits and losses with private sector insurers shall not be treated as a separate insurer, and shall report to each private sector insurance participant its share of the insured losses of the entity, which shall be included in each private sector participating insurer’s insured losses. (3) Treatment of participation in certain entities Any insurer that participates in sharing profits and losses of a State residual market insurance entity shall include in its calculations of premiums any premiums distributed to the insurer by the State residual market insurance entity. (e) Reinsurance for insured losses (1) Federal share of compensation (A) Quota share protection In general, the Federal share of compensation under the Program to be paid by the Secretary for insured losses of an insurer or a parametric insurance facility during each calendar year shall, on a quota share basis, be equal to 95 percent of such insured losses. (B) Stop-loss protection In addition to the quota share reinsurance provided under subparagraph (A), the Secretary may, upon application by an insurer or parametric insurance facility, provide such insurer or facility with stop-loss protection for insured losses, for such price and on such other terms and conditions as the Secretary deems consistent with the purposes of the Act. In general, such stop loss protection shall not have an attachment point lower than provided in any catastrophe excess of loss reinsurance program which the insurer or facility has in effect for the same period. (f) Captive insurers and other self-Insurance arrangements The Secretary may, in consultation with the NAIC or the appropriate State regulatory authority, apply the provisions of this Act, as appropriate, to other classes or types of captive insurers and other self-insurance arrangements by municipalities and other entities (such as workers compensation self-insurance programs and State workers (g) Reinsurance To cover exposure (1) Obtaining coverage This Act may not be construed to limit or prevent insurers or facilities from obtaining reinsurance coverage for insured losses retained by insurers or facilities pursuant to this section, nor shall the obtaining of such coverage affect the calculation of such deductibles. (2) Limitation on financial assistance The amount of financial assistance provided pursuant to this section shall not be reduced by reinsurance paid or payable to an insurer from other sources, except that recoveries from such other sources, taken together with financial assistance for the calendar year provided pursuant to this section, may not exceed the aggregate amount of the insurer’s insured losses for the calendar year. If such recoveries and financial assistance for the calendar year exceed such aggregate amount of insured losses for the calendar year and there is no agreement between the insurer and any reinsurer to the contrary, an amount in excess of such aggregate insured losses shall be returned to the Secretary. (h) Premiums for Quota Share Reinsurance Protection (1) Economic recovery period During the economic recovery period, including any reset extension, no premium will be charged to insurers or parametric insurance facilities for the Federal quota share reinsurance protection provided by the Program under subsection (e)(1)(A). (2) Thereafter Commencing with the expiration of the economic recovery period, the Secretary shall be authorized to prescribe a rating plan for the quota share reinsurance provided by the Program under subsection (e)(1)(A) for both the parametric non-damage business interruption insurance and for other lines of property and casualty insurance. The rating plan shall be designed to encourage broad participation in the coverage made available under the Program, and in particular shall be designed to recover the cost of the reinsurance program over a period of not less than 5 years. 5. General authority and administration of claims (a) General authority The Secretary shall have the powers and authorities necessary to carry out the Program, including authority— (1) to investigate and audit all claims under the Program; and (2) to prescribe regulations and procedures to effectively administer and implement the Program, and to ensure that all participating insurers and self-insured entities are treated comparably under the Program. (b) Interim rules and procedures The Secretary may issue interim final rules or procedures specifying the manner in which— (1) insurers may file and certify claims under the Program; (2) the Federal share of compensation for insured losses will be paid under the Program, including payments based on estimates of or actual insured losses; (3) the Secretary may, at any time, seek repayment from or reimburse any insurer, based on estimates of insured losses under the Program, to effectuate the insured loss sharing provisions in section 4; and (4) the Secretary will determine any final netting of payments under the Program, including payments owed to the Federal Government from any insurer and any Federal share of compensation for insured losses owed to any insurer, to effectuate the insured loss sharing provisions in section 4. (c) Consultation The Secretary shall consult with the NAIC, as the Secretary determines appropriate, concerning the Program. (d) Contracts for services The Secretary may employ persons or contract for services as may be necessary to implement the Program. (e) Submission of premium information (1) In general The Secretary shall annually compile information on the property and casualty insurance premium rates of insurers for the preceding year. (2) Access to information To the extent that such information is not otherwise available to the Secretary, the Secretary may require each insurer to submit to the NAIC property and casualty insurance premium rates, as necessary to carry out paragraph (1), and the NAIC shall make such information available to the Secretary. (3) Availability to congress The Secretary shall make information compiled under this subsection available to the Congress, upon request. (f) Reporting of property and casualty insurance data (1) Authority Beginning upon the date of the enactment of this Act, in each calendar year, the Secretary shall require insurers to submit to the Secretary such information regarding losses of such insurers resulting from covered public health emergencies as the Secretary considers appropriate to analyze the effectiveness of the Program, which shall include information regarding— (A) lines of insurance with exposure to such losses; (B) premiums earned on such coverage; (C) geographical location of exposures; (D) pricing of such coverage; (E) the take-up rate for such coverage; (F) the amount of private reinsurance for losses resulting from covered public health emergencies purchased; and (G) such other matters as the Secretary considers appropriate. (2) Reports Not later than one year after the date of the enactment of this Act and annually thereafter, the Secretary shall submit a report to the Committee on Financial Services of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs of the Senate that includes— (A) an analysis of the overall effectiveness of the Program; (B) an evaluation of the availability and affordability of property and casualty insurance for losses resulting from public health emergencies; (C) an evaluation of any changes or trends in the data collected under paragraph (1); (D) an evaluation of whether any aspects of the Program have the effect of discouraging or impeding insurers from providing property and casualty insurance coverage or coverage for public health emergencies; (E) an evaluation of the impact of the Program on workers’ compensation insurers; and (F) in the case of the data reported in paragraph (1)(B), an updated estimate of the total amount earned since the first January 1 occurring after the date of the enactment of this Act. (3) Protection of data To the extent possible, the Secretary shall contract with an insurance statistical aggregator to collect the information described in paragraph (1), which shall keep any nonpublic information confidential and provide it to the Secretary in an aggregate form or in such other form or manner that does not permit identification of the insurer submitting such information. (4) Advance coordination Before collecting any data or information under paragraph (1) from an insurer, or affiliate of an insurer, the Secretary shall coordinate with the appropriate State insurance regulatory authorities and any relevant government agency or publicly available sources to determine if the information to be collected is available from, and may be obtained in a timely manner by, individually or collectively, such entities. If the Secretary determines that such data or information is available, and may be obtained in a timely matter, from such entities, the Secretary shall obtain the data or information from such entities. If the Secretary determines that such data or information is not so available, the Secretary may collect such data or information from an insurer and affiliates. (5) Confidentiality (A) Retention of privilege The submission of any non-publicly available data and information to the Secretary and the sharing of any non-publicly available data with or by the Secretary among other Federal agencies, the State insurance regulatory authorities, or any other entities under this subsection shall not constitute a waiver of, or otherwise affect, any privilege arising under Federal or State law (including the rules of any Federal or State court) to which the data or information is otherwise subject. (B) Continued application of prior confidentiality agreements Any requirement under Federal or State law to the extent otherwise applicable, or any requirement pursuant to a written agreement in effect between the original source of any non-publicly available data or information and the source of such data or information to the Secretary, regarding the privacy or confidentiality of any data or information in the possession of the source to the Secretary, shall continue to apply to such data or information after the data or information has been provided pursuant to this subsection. (C) Information-sharing agreement Any data or information obtained by the Secretary under this subsection may be made available to State insurance regulatory authorities, individually or collectively, through an information-sharing agreement that— (i) shall comply with applicable Federal law; and (ii) shall not constitute a waiver of, or otherwise affect, any privilege under Federal or State law (including any privilege referred to in subparagraph (A) and the rules of any Federal or State court) to which the data or information is otherwise subject. (D) Agency disclosure requirements Section 552 of title 5, United States Code, including any exceptions thereunder, shall apply to any data or information submitted under this subsection to the Secretary by an insurer or affiliate of an insurer. (g) Funding (1) Federal payments There are hereby appropriated, out of funds in the Treasury not otherwise appropriated, such sums as may be necessary to pay the Federal share of compensation for insured losses under the Program. (2) Administrative expenses There are hereby appropriated, out of funds in the Treasury not otherwise appropriated, such sums as may be necessary to pay reasonable costs of administering the Program. 6. Preemption and nullification of pre-existing exclusions (a) General nullification Any exclusion in a contract of an insurer for property and casualty insurance that is in force on the date of enactment of this Act shall be void to the extent that it excludes losses that would otherwise be insured losses under the Program. (b) General preemption Any State approval of any exclusion from a contract of an insurer for property and casualty insurance that is in force on the date of enactment of this Act, shall be void to the extent that it excludes losses that would otherwise be insured losses under the Program. (c) Reinstatement of exclusions Notwithstanding subsections (a) and (b) or any provision of State law, an insurer may reinstate a preexisting provision in a contract for property and casualty insurance that is in force on the date of enactment of this Act and that excludes coverage for loss resulting from a covered public health emergency only— (1) if the insurer has received a written statement from the insured that affirmatively authorizes such reinstatement; or (2) for contracts in effect for less than 5 months— (A) the insured fails to pay any increased premium charged by the insurer for providing such coverage for covered public health emergencies, but only if such premium does not increase by more than 15 percent; and (B) the insurer provided notice, at least 30 days before any such reinstatement, of— (i) the increased premium for such covered public health emergency coverage; and (ii) the rights of the insured with respect to such coverage, including any date upon which the exclusion would be reinstated if no payment is received. 7. Preservation provisions (a) State law Nothing in this Act shall affect the jurisdiction or regulatory authority of the insurance commissioner (or any agency or office performing like functions) of any State over any insurer or other person— (1) except as specifically provided in this Act; and (2) except that— (A) the definition of the term covered public health emergency in section 3 shall be the exclusive definition of that term for purposes of compensation for insured losses under this Act, and shall preempt any provision of State law that is inconsistent with that definition, to the extent that such provision of law would otherwise apply to any type of insurance covered by this Act; (B) during the period beginning on the date of enactment of this Act and ending on December 31, 2021, rates and forms for property and casualty insurance covered by this Act and filed with any State shall not be subject to prior approval or a waiting period under any law of a State that would otherwise be applicable, except that nothing in this Act affects the ability of any State to invalidate a rate as excessive, inadequate, or unfairly discriminatory, and, with respect to forms, where a State has prior approval authority, it shall apply to allow subsequent review of such forms; and (C) during the period beginning on the date of enactment of this Act and for so long as the Program is in effect, as provided in section 9, books and records of any insurer that are relevant to the Program shall be provided, or caused to be provided, to the Secretary, upon request by the Secretary, notwithstanding any provision of the laws of any State prohibiting or limiting such access. (b) Existing reinsurance agreements Nothing in this Act shall be construed to alter, amend, or expand the terms of coverage under any reinsurance agreement in effect on the date of enactment of this Act. The terms and conditions of such an agreement shall be determined by the language of that agreement. 8. Study and analyses (a) Study and report on the program (1) Study The Secretary, in consultation with the NAIC, representatives of the insurance industry and of policy holders, other experts in the insurance field, and other experts as needed, shall assess the effectiveness of the Program and the likely capacity of the property and casualty insurance industry to offer insurance for risk of public health emergencies after termination of the Program, and the availability and affordability of such insurance for various policyholders. (2) Report The Secretary shall submit a report to the Congress on the results of the study conducted under paragraph (1) not later than the expiration of the 12-month period beginning on the date of the enactment of this Act. (b) Analysis of market conditions for public health emergency risk insurance (1) In general The President’s Working Group on Financial Markets, in consultation with the National Association of Insurance Commissioners, representatives of the insurance industry, representatives of the securities industry, and representatives of policy holders, shall perform an ongoing analysis regarding the long-term availability and affordability of insurance for risk of public health emergencies. (2) Report Not later than the expiration of the 12-month period beginning on the date of the enactment of this Act and every two years thereafter, the President’s Working Group on Financial Markets shall submit a report to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives on its findings pursuant to the analysis conducted under paragraph (1). (c) Availability and affordability of property and casualty insurance in specific markets (1) Study The Comptroller General of the United States shall conduct a study to determine whether there are specific markets in the United States where there are unique capacity constraints on the amount of property and casualty insurance available. (2) Elements of study The study required by paragraph (1) shall contain— (A) an analysis of both insurance and reinsurance capacity in specific markets, including pricing and coverage limits in existing policies; (B) an assessment of the factors contributing to any capacity constraints that are identified; and (C) recommendations for addressing those capacity constraints. (3) Report Not later than 180 days after the date of enactment of this Act, the Comptroller General shall submit a report on the study required by paragraph (1) to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives. (d) Study of small insurer market competitiveness (1) In general Not later than the expiration of the 12-month period beginning on the date of the enactment of this Act and every two years thereafter, the Secretary shall conduct a study of small insurers (as such term is defined by regulation by the Secretary) participating in the Program, and identify any competitive challenges small insurers face in the property and casualty insurance marketplace, including— (A) changes to the market share, premium volume, and policyholder surplus of small insurers relative to large insurers; (B) how the property and casualty insurance market for risk of public health emergencies differs between small and large insurers, and whether such a difference exists within other perils; (C) the impact of the Program’s availability on small insurers; (D) the availability and cost of private reinsurance for small insurers; and (E) the impact that State workers compensation laws have on small insurers and workers compensation carriers in the property and casualty insurance marketplace. (2) Report The Secretary shall submit a report to the Congress setting forth the findings and conclusions of each study required under paragraph (1). 9. Termination of Program (a) Termination The Program shall terminate on December 31, 2031. (b) Continuing authority To pay or adjust compensation following the termination of the Program, the Secretary may take such actions as may be necessary to ensure payment, recoupment, reimbursement, or adjustment of compensation for insured losses arising out of any covered public health emergency occurring during the period in which the Program was in effect under this Act, in accordance with the provisions of section 4 and regulations promulgated thereunder. (c) Repeal This Act is repealed on the final termination date of the Program under subsection (a), except that such repeal shall not be construed— (1) to prevent the Secretary from taking, or causing to be taken, such actions under subsection (b) of this section, paragraph (4) or (5) of section 4(e), or subsection (a)(1), (c), (d), or (e) of section 5, as in effect on the day before the date of such repeal, or applicable regulations promulgated thereunder, during any period in which the authority of the Secretary under subsection (b) of this section is in effect; or (2) to prevent the availability of funding under section 5(g) during any period in which the authority of the Secretary under subsection (b) of this section is in effect.

Summary: Pandemic Risk Insurance Act of 2021 This bill establishes the Pandemic Risk Reinsurance Program within the Department of the Treasury. The program generally provides compensation to property and casualty insurers if they incur losses as a result of coverage related to pandemics and outbreaks of disease. All insurers as specified in the bill must participate in the program. These insurers must offer, in all property and casualty insurance policies, coverage of losses related to an outbreak of infectious disease or a pandemic for which a covered public health emergency is certified by the Department of Health and Human Services. Additionally, these insurers must offer, in all its commercial property insurance policies, coverage to compensate the insured for a portion of 180 days' fixed costs and payroll triggered upon the certification of a public health emergency and state or local government closure orders without requiring specific proof of losses. The bill establishes the share of insured losses covered by the program and conditions for payment to insurers. The bill also provides for the treatment of reinsurance, captive insurers, other self-insurance arrangements, and state residual market insurance entities. The Government Accountability Office must report on the availability and affordability of property and casualty insurance.