Understanding Captive Insurance: Regulatory Challenges and Framework
Federal agencies express systemic concerns over captive transactions, emphasizing the importance of distinguishing between different types of captives. The NAIC Solvency Framework aims to establish a consistent baseline for accounting practices in the insurance industry while allowing for flexibility. Regulatory flexibility is crucial to address the varying complexities of insurance products and transactions, ensuring effective oversight. However, there is a fine line between regulatory flexibility and arbitrage, where differing treatments of similar risks can lead to unlevel playing fields. Transparency and regulatory checks are essential to assess solvency protection and industry dynamics in the captive insurance landscape.
- Captive insurance
- Regulatory challenges
- NAIC Solvency Framework
- Regulatory flexibility
- Insurance industry
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Presentation Transcript
The Real Deal on Captives Superintendent Joe Torti, III (RI)
Systemic/Stability Concerns Pt. 1 Federal agencies and the media have expressed potential systemic/stability concerns with captive transactions FSOC, FIO, Federal Reserve, OFR Initial Response: Do not paint with a broad brush! The Differences Matter! Pure Captives vs. Captive Reinsurance XXX/AXXX vs. Variable Annuity vs. Long Term Care vs. ?? Risks and concerns differ by type and even by transaction
Consistent Solvency Framework Insurance types and transactions differ much more widely than banking transactions NAIC Solvency Framework establishes a consistent baseline of accounting to enhance comparability and efficiency, yet allows flexibility through Permitted/Prescribed Accounting Practices Disclosure of impacts to Net Income and Surplus to retain comparability
Regulatory Flexibility Regulation involves judgment More variety in insurance products requires more flexibility for the regulator; Tailoring the regulation to the specifics of the product/transaction to increase effectiveness NAIC Solvency Framework includes various checks and balances to discourage outlier judgments Information sharing with licensure states, e.g., permitted accounting practice requests Transparency via significant disclosures Financial Analysis Working Group review NAIC Accreditation program
Flexibility vs. Arbitrage Such flexibility can turn into concerning regulatory arbitrage when two somewhat similar insurance risks, transactions, etc., are treated very differently Unlevel playing fields can occur Must assess if solvency protection is adequate If you add a lack of transparency on top of the unlevel playing field, it makes it more difficult for regulators and other market participants to Compare transactions/insurers/groups Assess industry dynamics
How Did this Captive Situation Occur? NAIC Accreditation baseline for multi-state insurers Baseline statutory accounting in NAIC Accounting Practices & Procedures Manual usually more conservative than GAAP Permitted/Prescribed differences are allowed but must disclose impact on Net Income and Capital & Surplus in Note 1 of public financial statements Capital Requirements fixed $ and RBC Reinsurance Transactions Reviewed and/or Approved by Regulator; Collateral Requirements; Material Transactions, etc. Captives were historically used by corporations & non- profit organizations to self-insurer risks (pure captive) Captives were excluded from NAIC Accreditation using the traditional pure captive concept Developed outside of NAIC process since self-insurance
NAIC Priority Life insurers more recently began to use captives to reinsure third party risks so called captive reinsurance transactions NAIC priority of reviewing captive reinsurance: XXX\AXXX Transactions (i.e., Term Life and Universal Life) Variable Annuities Long Term Care Other Business Types? Risks differ based upon policy type; depends upon the nature of the potential regulatory arbitrage Regulatory response will need to differ as well
XXX/AXXX Captive Reinsurance Similar issue redundant (excess) reserves Similar structure in arbitrage solutions Economic reserve level supported by normal, high quality assets (admitted assets) Remainder of formulaic reserve supported by other security (e.g., LoCs, Parental Guarantees) Details differed by state with no correspond-ing differences in product designs, transaction structures = potential for concerning arbitrage
Regulatory Review XXX/AXXX captive reinsurance transactions reviewed/approved by state of domicile of the ceding insurer as well as the captive reinsurer Solvency assessment was performed If the regulatory actuary agreed the economic reserve was an adequate reserve, including an appropriate level of conservatism, then no solvency concern NAIC established consistent analysis procedures for all XXX/AXXX captive transactions Accreditation Requirement
Additional Point on Solvency with XXX/AXXX Captive Transactions Ceding Insurer w/o Captive Ceding Insurer w/ Captive to Formulaic Reserve for Ceding Insurer $ 100 $ 100 - $60 = $40 $ 100 Admitted Assets Non-admitted Assets $ 100 $100 - $100 = $0 Formulaic Reserve $ 60 Conservative Economic Reserve $ 40 Surplus $0 $40
Consistency and Transparency Thus, NAIC response is to tackle the problems of concerning regulatory arbitrage Lack of consistency with similar products/ transactions And Lack of transparency
1/1/2015 and Beyond AG 48 requires Qualified Actuarial Opinion if new transactions do not meet its provisions Prior transactions not covered But are covered by consistent analysis procedures and transparency requirements for the ceding insurer Not a solvency concern if actuarial and financial analysis do not identify concerns; just not consistent in the transaction structure
VARIABLE ANNUITY AND LTC CAPTIVE TRANSACTIONS Financial Condition (E) Committee will consider any appropriate modifications to solvency framework After studying the reasons for and nature of the transactions Financial Regulation Standards and Accreditation (F) Committee has adopted revisions to multi-state definition for XXX/AXXX, variable annuity and LTC captives Captives assuming business that was written in more than one state by the ceding insurer would be included in the Accreditation standards as multi-state Insurers XXX/AXXX captive cessions meeting the NAIC Framework result in the captive being deemed in compliance with Accreditation requirements Regulators will need to decide on retroactivity for any regulatory change Variable annuities do not have the contractual language issues of older life insurance policies, but it might be difficult to address without having bifurcated approaches to allow time to unwind existing hedges against statutory require- ments as opposed to the more preferred economic risk management hedges
Systemic/Stability Concerns Pt. 2 SIFI designation was designed to identify non-banks including insurers with potential to threaten US financial stability FSOC believes utilization of captive reinsurers can potentially increase concerns for a SIFI We say risks must be assessed for each transaction; captive reinsurance is not always a stability issue Lack of consistency and transparency undermine confidence in the national system of state-based insurance regulation, causing these concerns
