[31 PA. CODE CHS. 89 AND 89a]
Long-Term Care Insurance Form and Rate Filings
[31 Pa.B. 5553]
The Insurance Department (Department) proposes to delete §§ 89.901--89.921 and to establish Chapter 89a (relating to long-term care insurance model regulation) and Appendices A--F to read as set forth in Annex A. Chapter 89a sets forth the requirements for the content and filing of long-term care insurance form and rate filings.
The rulemaking is proposed under the authority contained in sections 206, 506, 1501 and 1502 of The Administrative Code of 1929 (71 P. S. §§ 66, 186, 411 and 412) and sections 1101--1115 of The Insurance Company Law of 1921 (act) (40 P. S. §§ 991.1101--991.1115).
Sections 89.901--89.921 (relating to long-term care insurance) was adopted in 1994. The purpose of the subchapter was to implement sections 1101--1115 of the act, to promote the public interest, to promote the availability of long-term care insurance coverage, to protect applicants for long-term care insurance from unfair or deceptive sales or enrollment practices, to facilitate public understanding and comparison of long-term care insurance coverages and to facilitate flexibility and innovation in the development of long-term care insurance. This section provided filing and content requirements for long-term care insurance form and rate filings in this Commonwealth.
The Department is proposing to establish Chapter 89a and Appendices A--F to replace Chapter 89, Subchapter M to address the purposes of the act, to reflect changes in the long-term care insurance marketplace and to enhance consumer protection through revised rate filing requirements and required disclosure notices. However, certain sections have not been substantially changed from the current regulations.
The long-term care insurance market has grown and evolved dramatically since Chapter 89, Subchapter M was originally adopted in 1994. By its nature, long-term care insurance policies are generally purchased well in advance of their potential use. This type of advance purchase increases the need for rate stability and adequate consumer disclosure of policy coverages and past rate increases by an insurer. Concerns have been raised both in this Commonwealth and Nationally about the impact of frequent rate hikes on consumers, especially those on a fixed income, and adequate disclosure to consumers of the terms and conditions of their long-term care insurance policies as well as premium rate increase histories of insurance carriers.
The amendments are based on the National Association of Insurance Commissioner's Long-Term Care Insurance Model Regulation (model regulation) adopted in August 2000. The Department is proposing to adopt these amendments to address these consumer protection and rating issues and to follow consistent National standards, when possible, to provide insurance carriers who market long-term care insurance policies in multiple states with consistent requirements within the scope of Commonwealth statutes and regulations.
Explanation of Regulatory Requirements
The following sections contain substantive changes from the existing long-term care regulations found in Subchapter M.
Section 89a.103 (relating to definitions) is based on § 89.903 with additional definitions that are necessary for the revisions of the subchapter. The additional definitions include ''exceptional increase,'' ''incidental'' ''qualified actuary,'' and ''qualified long-term care insurance contract or Federally tax-qualified long-term care insurance contract.''
Section 89a.104 (relating to policy definitions) is based on § 89.904 with additional definitions that are necessary for the revisions of the subchapter and are based on the model regulation.
Section 89a.105 (relating to policy practices and provisions) is based on § 89.905 with additional language to define ''level premium'' and to address renewability for tax qualified long-term care policies. Additional language that was added under § 89a.105(b) is based on the model regulation and 75 Pa.C.S. §§ 1701--1798 (relating to Motor Vehicle Financial Responsibility Law). Additional language that was added under § 89a.105(f) is necessary for the revisions of the subchapter and § 89a.105(g) is based on the model regulation.
Section 89a.107 (relating to required disclosure provisions) is based on § 89.907 with additional language to address disclosure requirements regarding renewability and premium changes. Additional language was added under § 89a.107(f), (g) and (h). Changes are based on the model regulation.
Section 89a.108 (relating to required disclosure of rating practices to consumer) is new and contains all new language reflecting the consumer disclosure requirements on history of rate increases based on the model regulation.
Section 89a.109 (relating to initial filing requirements) is new and contains all new language reflecting the revised rate filing requirements based on the model regulation.
Section 89a.112 (relating to the requirement to offer inflation protection) is based on § 89.910 with additional language reflecting the required offer and disclosure of inflation protection based on the model regulation.
Section 89a.114 (relating to reporting requirements) is based on § 89.912 with additional language to require reporting of claims denied, definition of ''denied,'' and reference to the sample claims denial format (Appendix E).
Section 89a.115 (relating to licensing) is new and contains all new language based on the model regulation.
Section 89a.116 (relating to reserve standards) is based on § 89.913 with additional language to reference the minimum reserve standards for individual and group health and accident contracts regulation.
Section 89a.117 (relating to loss ratio) is based on § 89.914 with additional language to reference revised rate filing requirements based on the model regulation.
Section 89a.118 (relating to premium rate schedule increases) is new and contains all new language based on the revised rate filing requirements consistent with the model regulation.
Section 89a.120 (relating to standards for marketing) is based on § 89.916 with additional language to reference consumer disclosure forms (Appendices B and F) and other references based on the model regulation.
Section 89a.121 (relating to suitability) is based on § 89.917 with additional language relating to consumer disclosure including the personal worksheet (Appendix B) for consistency with the model regulation.
Section 89a.123 (relating to nonforfeiture benefit requirement) is new and contains all new language. This section was added to be consistent with the model regulation.
Section 89a.124 (relating to standards for benefit triggers) is new and contains all new language. This section was added to be consistent with the model regulation.
Section 89a.125 (relating to additional standards for benefit triggers for qualified long-term care insurance contracts) is new and contains all new language. This section was added to be consistent with the model regulation.
Section 89a.126 (relating to standard format outline of coverage) is based on § 89.919 with additional disclosure language referencing Federal tax consequences, premium change and the Commonwealth Senior Health Insurance Assistance Program. Changes were made to be consistent with the model regulation.
Section 89a.128 (relating to penalties) is new and contains all new language. This section was added to be consistent with the model regulation.
Appendices A--F contain all new language based on the model regulation.
The following sections contain only minor changes from the existing long-term care regulations found in Subchapter M.
Section 89a.102 (relating to applicability and scope) is based on § 89.902 with revisions to address the concept of tax qualified long-term care policies which were created by the Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191, 110 Stat. 1936).
Section 89a.106 (relating to unintentional lapse) is based on § 89.906 with revisions based on the model regulation and to clarify the reinstatement provision.
Section 89a.110 (relating to prohibition against post-claims underwriting) is based on § 89.908 with revisions consistent with the model regulation.
Section 89a.111 (relating to minimum standards for home health and community care benefits in long-term care insurance policies) is based on § 89.909 with revisions consistent with the model regulation.
Section 89a.113 (relating to requirements for application forms and replacement coverage) is based on § 89.911 with revisions consistent with the model regulation.
Section 89a.119 (relating to filing requirement) is based on § 89.915 with revisions consistent with the model regulation.
The following information represents sections that have been renumbered. No change has been made to the content of these sections. The Department therefore is not soliciting comments on these sections at this time.
Proposed Section Number and Title Current Section Number § 89a.101. Purpose. § 89.901 § 89a.122. Prohibition Against Preexisting Conditions and Probationary Periods in Replacement Policies or Certificates. § 89.918 § 89a.127. Requirement to Deliver Shopper's Guide. § 89.920 § 89a.129. Permitted Compensation Arrangements. § 89.921
All companies who must follow the Department's form and content requirements of form and rate filings and doing the business of long-term care insurance in this Commonwealth.
The proposed rulemaking will not have an impact on Department costs associated with monitoring industry compliance because this does not represent a major change from current policy.
The proposed rulemaking is not expected to have any cost impact on premiums paid by consumers for insurance policies.
The proposed rulemaking has no impact on costs to political subdivisions.
The proposed rulemaking will not have any major impact on private sector costs because this does not represent a major change from current policy.
The proposed rulemaking imposes no additional paperwork requirements on the Department and modifies the paperwork requirements imposed on the insurance industry.
The proposed rulemaking will become effective upon final-form adoption and publication in the Pennsylvania Bulletin as a final-form rulemaking. No sunset date has been assigned.
Questions or comments regarding the proposed rulemaking may be addressed in writing to Peter J. Salvatore, Regulatory Coordinator, 1326 Strawberry Square, Harrisburg, PA 17120, within 30 days following publication of this notice in the Pennsylvania Bulletin.
Questions or comments may also be sent by e-mail to firstname.lastname@example.org or faxed to (717) 772-1969.
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 25, 2001, the Department submitted a copy of the proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate Banking and Insurance Committee and the House Insurance Committee. In addition to submitting the proposed rulemaking, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Department in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has any objections to any portion of the proposed rulemaking, it will notify the Department within 10 days of the close of Committees' review period. The notification shall specify the regulatory review criteria that have not been met by that portion of the proposed rulemaking. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of objections raised.
M. DIANE KOKEN,
Fiscal Note: 11-208. No fiscal impact; (8) recommends adoption.
TITLE 31. INSURANCE
PART IV. LIFE INSURANCE
CHAPTER 89. APPROVAL OF LIFE, ACCIDENT AND HEALTH INSURANCE
Subchapter M. (Reserved)
§§ 89.901--89.921. (Reserved).
Chapter 89a. LONG-TERM CARE INSURANCE MODEL REGULATION
89a.101. Purpose. 89a.102. Applicability and scope. 89a.103 Definitions. 89a.104. Policy definitions. 89a.105. Policy practices and provisions. 89a.106. Unintentional lapse. 89a.107. Required disclosure provisions. 89a.108. Required disclosure of rating practices to consumer. 89a.109. Initial filing requirements. 89a.110. Prohibition against postclaims underwriting. 89a.111. Minimum standards for home health and community care benefits in long-term care insurance policies. 89a.112. Requirement to offer inflation protection. 89a.113. Requirements for application forms and replacement coverage. 89a.114. Reporting requirements. 89a.115. Licensing. 89a.116. Reserve standards. 89a.117. Loss ratio. 89a.118. Premium rate schedule increases. 89a.119. Filing requirement. 89a.120. Standards for marketing. 89a.121. Suitability. 89a.122. Prohibition against preexisting conditions and probationary periods in replacement policies or certificates. 89a.123. Nonforfeiture benefit requirement. 89a.124. Standards for benefit triggers. 89a.125. Additional standards for benefit triggers for qualified long-term care insurance contracts. 89a.126. Standard format outline of coverage. 89a.127. Requirement to deliver shopper's guide. 89a.128. Penalties. 89a.129. Permitted compensation arrangements.
§ 89a.101. Purpose.
The purpose of this chapter is to implement sections 1101--1115 of the act (40 P. S. §§ 991.1101--991.1115), to promote the public interest, to promote the availability of long-term care insurance coverage, to protect applicants for long-term care insurance, as defined, from unfair or deceptive sales or enrollment practices, to facilitate public understanding and comparison of long-term care insurance coverages and to facilitate flexibility and innovation in the development of long-term care insurance.
§ 89a.102. Applicability and scope.
Except as otherwise specifically provided, this chapter applies to all long-term care insurance policies, including qualified long-term care contracts delivered or issued for delivery in this Commonwealth on or after ____ (Editor's Note: The blank refers to the effective date of adoption of this proposal.) by insurers, fraternal benefit societies, nonprofit hospital plan and professional health services plan corporations, prepaid health plans, health maintenance organizations and all similar organizations. Certain provisions of this chapter apply only to qualified long-term care insurance contracts as noted.
§ 89a.103. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act--The Insurance Company Law of 1921 (40 P. S. §§ 341--991.2361)
Applicant--The term as defined in section 1103 of the act (40 P. S. § 991.1103).
Certificate--The term as defined in section 1103 of the act.
Commissioner--The Insurance Commissioner of the Commonwealth.
Department--The Insurance Department of the Commonwealth.
Exceptional increase--Only those increases filed by an insurer as exceptional for which the Commissioner determines the need for the premium rate increase is justified.
(i) Increases due to changes in laws or regulations applicable to long-term care coverage in this Commonwealth or due to increased and unexpected utilization that affects the majority of insurers of similar products.
(ii) Except as provided in § 89a.118 (relating to premium rate schedule increases), exceptional increases are subject to the same requirements as other premium rate schedule increases.
(iii) The Commissioner may request a review by an independent actuary or a professional actuarial body of the basis for a request that an increase be considered an exceptional increase.
(iv) The Commissioner, in determining that the necessary basis for an exceptional increase exists, will also determine potential offsets to higher claims costs.
Functionally necessary--The term as defined in section 1103 of the act.
Group long-term care insurance--The term as defined in section 1103 of the act.
Incidental--As used in § 89a.118(j), means that the value of the long-term care benefits provided is less than 10% of the total value of the benefits provided over the life of the policy. These values shall be measured as of the date of issue.
Long-term care insurance--The term as defined in section 1103 of the act.
Medically necessary--The term as defined in section 1103 of the act.
Policy--The term as defined in section 1103 of the act.
Producer--An agent as defined in section 601 of the act (40 P. S. § 231), or a broker as defined in section 621 of the act (40 P. S. § 251).
Qualified actuary--A member in good standing of the American Academy of Actuaries.
Qualified long-term care insurance contract or Federally tax-qualified long-term care insurance contract--
(i) An individual or group insurance contract that meets all of the following requirements of section 7702B(b) of the Internal Revenue Code of 1986 (IRC) (26 U.S.C.A. § 77026B(b)):
(A) The only insurance protection provided under the contract is coverage of qualified long-term care services. A contract may not fail to satisfy the requirements of this subparagraph by reason of payments being made on a per diem or other periodic basis without regard to the expenses incurred during the period to which the payments relate.
(B) The contract does not pay or reimburse expenses incurred for services or items to the extent that the expenses are reimbursable under Title XVIII of the Social Security Act (42 U.S.C.A. §§ 1395--1395ggg) or would be so reimbursable but for the application of a deductible or coinsurance amount. The requirements of this subparagraph do not apply to expenses that are reimbursable under Title XVIII of the Social Security Act only as a secondary payor. A contract may not fail to satisfy the requirements of this subparagraph by reason of payments being made on a per diem or other periodic basis without regard to the expenses incurred during the period to which the payments relate.
(C) The contract is guaranteed renewable, within the meaning of section 7702B(b)(1)(C) of the IRC.
(D) The contract does not provide for a cash surrender value or other money that can be paid, assigned, pledged as collateral for a loan, or borrowed.
(E) All refunds of premiums and all policyholder dividends or similar amounts, under the contract are to be applied as a reduction in future premiums or to increase future benefits, except that a refund on the event of death of the insured or a complete surrender or cancellation of the contract cannot exceed the aggregate premiums paid under the contract.
(F) The contract meets the consumer protection provisions in section 7702B(g) of the IRC.
(ii) The term also means the portion of a life insurance contract that provides long-term care insurance coverage by rider or as part of the contract and that satisfies the requirements of section 7702B(b) and (e) of the IRC.
Similar policy forms--All of the long-term care insurance policies and certificates issued by an insurer in the same long-term care benefit classification as the policy form being considered. Certificates of groups that meet the definition in section 1103 of the act (40 P. S. § 991.1103) are not considered similar to certificates or policies otherwise issued as long-term care insurance, but are similar to other comparable certificates with the same long-term care benefit classifications. For purposes of determining similar policy forms, long-term care benefit classifications are defined as follows:
(i) Institutional long-term care benefits only.
(ii) Noninstitutional long-term care benefits only.
(iii) Comprehensive long-term care benefits.
§ 89a.104. Policy definitions.
(a) A long-term care insurance policy delivered or issued for delivery in this Commonwealth may not use the terms set forth as follows, unless the terms are defined in the policy and the definitions satisfy the following requirements:
Activities of daily living--Bathing, continence, dressing, eating, toileting and transferring.
Acute condition--The term means that the individual is medically unstable. This individual requires frequent monitoring by medical professionals, such as physicians and registered nurses, to maintain the individual's health status.
Adult day care--A program for 6 or more individuals, of social and health-related services provided during the day in a community group setting for the purpose of supporting frail, impaired elderly or other disabled adults who can benefit from care in a group setting outside the home.
Bathing--Washing oneself by sponge bath, or in either a tub or shower, including the task of getting into or out of the tub or shower or drawing the water for a sponge bath and getting the equipment to the person or the person to the equipment.
Cognitive impairment--A deficiency in a person's short or long-term memory, orientation as to person, place and time, deductive or abstract reasoning, or judgment as it relates to safety awareness.
Continence--The ability to maintain control of bowel and bladder function; or, when unable to maintain control of bowel or bladder function, the ability to perform associated personal hygiene (including caring for catheter or colostomy bag).
Dressing--Putting on and taking off all items of clothing and necessary braces, fasteners or artificial limbs.
Eating--Feeding oneself by getting food into the body from a receptacle (such as a plate, cup or table) or by a feeding tube or intravenously.
Hands-on assistance--Physical assistance (minimal, moderate or maximal) without which the individual would not be able to perform the activity of daily living.
Home health care services--Medical and nonmedical services, provided to ill, disabled or infirm persons in their residences. The services may include homemaker services, assistance with activities of daily living and respite care services.
Medicare--The program under the Health Insurance for the Aged Act in Title XVIII of the Social Security Amendments of 1965 (42 U.S.C.A. §§ 1395--1395ggg).
Mental or nervous disorder--The term may not be defined to include more than neurosis, psychoneurosis, psychopathy, psychosis, or mental or emotional disease or disorder.
Personal care--The provision of supervisory or hands-on services to assist an individual with activities of daily living.
Skilled nursing care, intermediate care, personal care, home care and other services--These terms shall be defined in relation to the level of skill required, the nature of the care and the setting in which care must be delivered.
Toileting--Getting to and from the toilet, getting on and off the toilet and performing associated personal hygiene.
Transferring--Moving into or out of a bed, chair or wheelchair.
(b) All providers of services, including, but not limited to, skilled nursing facility, extended care facility, intermediate care facility, convalescent nursing home, personal care facility and home care agency shall be defined in relation to the services and facilities required to be available and the licensure or degree status of those providing or supervising the services. The definition may require that the provider be appropriately licensed or certified when the licensure or certification of the provider is required by the Commonwealth.
§ 89a.105. Policy practices and provisions.
(a) Renewability. The terms ''guaranteed renewable'' and ''noncancellable'' may not be used in an individual long-term care insurance policy without further explanatory language in accordance with the disclosure requirements of § 89a.108 (relating to required disclosure of rating practices to consumers).
(1) A policy issued to an individual may not contain renewal provisions other than ''guaranteed renewable'' or ''noncancellable.''
(2) The term ''guaranteed renewable'' may be used only when the insured has the right to continue the long-term care insurance in force by the timely payment of premiums and when the insurer has no unilateral right to make a change in a provision of the policy or rider while the insurance is in force, and cannot decline to renew, except that rates may be revised by the insurer on a class basis.
(3) The term ''noncancellable'' may be used only when the insured has the right to continue the long-term care insurance in force by the timely payment of premiums during which period the insurer has no right to unilaterally make a change in a provision of the insurance or in the premium rate.
(4) The term ''level premium'' may only be used when the insurer does not have the right to change the premium.
(5) In addition to the requirements of this subsection, a qualified long-term care insurance contract shall be guaranteed renewable, within the meaning of section 7702B(b)(1)(C) of the Internal Revenue Code of 1986 (26 U.S.C.A. §7702B(b)(1)(C)).
(b) Limitations and exclusions.
(1) A policy may not be delivered or issued for delivery in this Commonwealth as long-term care insurance if the policy limits or excludes coverage by type of illness, treatment, medical condition or accident, except as follows:
(i) Preexisting conditions or diseases.
(ii) Mental or nervous disorders; however, this may not permit exclusion or limitation of benefits on the basis of Alzheimer's Disease or other related degenerative or dementing illnesses.
(iii) Alcoholism and drug addiction.
(iv) Illness, treatment or medical condition arising out of any of the following:
(A) War or act of war (whether declared or undeclared).
(B) Participation in a felony, riot or insurrection.
(C) Service in the armed forces or units auxiliary thereto.
(D) Suicide (sane or insane), attempted suicide or intentionally self-inflicted injury.
(E) Aviation (this exclusion applies only to nonfare-paying passengers).
(v) Treatment provided in a government facility (unless a charge is made and the insured is legally obligated to pay), services for which benefits are available under Medicare or other governmental program except Medicaid, a state or Federal workers' compensation, employer's liability or occupational disease law or services provided by a member of the covered person's immediate family and services for which no charge is normally made in the absence of insurance.
(vi) Expenses for services or items available or paid under another long-term care insurance or health insurance policy.
(vii) In the case of a qualified long-term care insurance contract, expenses for services or items to the extent that the expenses are reimbursable under Title XVIII of the Social Security Act (Medicare) (42 U.S.C.A. §§ 1395--1395ggg) or would be so reimbursable but for the application of a deductible or coinsurance amount.
(2) This subsection is not intended to prohibit exclusions and limitations by type of provider or territorial limitations.
(3) Benefits otherwise payable under a long-term care policy shall be payable in excess of and not in duplication of valid and collectable first party benefits under a state motor vehicle responsibility law. See 75 Pa.C.S. §§ 1701--1798 (relating to Motor Vehicle Financial Responsibility Law).
(c) Extension of benefits. Termination of long-term care insurance shall be without prejudice to benefits payable for institutionalization if the institutionalization began while the long-term care insurance was in force and continues without interruption after termination. The extension of benefits beyond the period the long-term care insurance was in force may be limited to the duration of the benefit period or to payment of the maximum benefits and may be subject to a policy waiting period and other applicable provisions of the policy.
(d) Continuation or conversion.
(1) Group long-term care insurance issued in this Commonwealth on or after _____ (Editor's Note: The blank refers to the effective date of adoption of this proposal.) shall provide covered individuals with a basis for continuation or conversion of coverage.
(2) For the purposes of this section, ''a basis for continuation of coverage'' means a policy provision that maintains coverage under the existing group policy when the coverage would otherwise terminate and which is subject only to the continued timely payment of premium when due. Group policies that restrict provision of benefits and services to, or contain incentives to use certain providers or facilities may provide continuation benefits that are substantially equivalent to the benefits of the existing group policy. The Commissioner will make a determination as to the substantial equivalency of benefits, and in doing so, will take into consideration the differences between managed care and nonmanaged care plans, including, but not limited to, provider system arrangements, service availability, benefit levels and administrative complexity.
(3) For the purposes of this section, ''a basis for conversion of coverage'' means a policy provision that an individual whose coverage under the group policy would otherwise terminate or has been terminated for a reason, including discontinuance of the group policy in its entirety or with respect to an insured class, and who has been continuously insured under the group policy (and a group policy which it replaced), for at least 6 months immediately prior to termination, will be entitled to the issuance of a converted policy by the insurer under whose group policy the individual is covered, without evidence of insurability.
(4) For the purposes of this section, ''converted policy'' means an individual policy of long-term care insurance providing benefits identical to or benefits determined by the Commissioner to be substantially equivalent to or in excess of those provided under the group policy from which conversion is made. When the group policy from which conversion is made restricts provision of benefits and services to, or contains incentives to use certain providers or facilities, the Commissioner, in making a determination as to the substantial equivalency of benefits, will take into consideration the differences between managed care and nonmanaged care plans, including, but not limited to, provider system arrangements, service availability, benefit levels and administrative complexity.
(5) Written application for the converted policy shall be made and the first premium due, if applicable, shall be paid as directed by the insurer not later than 31 days after termination of coverage under the group policy. The converted policy shall be issued effective on the day following the termination of coverage under the group policy, and shall be renewable annually.
(6) When an insured converts from a group policy with rates based on the issue age of the insured to a conversion policy, the premium for the conversion policy shall be calculated on the basis of the insured's age at inception of continuous coverage on the original group policy and any other group policy which replaced the original group policy. When an insured converts from a group policy with rates based on the attained age of the insured, the premium for the conversion policy shall be calculated on the insured's age as of the date of conversion.
(7) Continuation of coverage or issuance of a converted policy shall be mandatory, except when:
(i) Termination of group coverage resulted from an individual's failure to make the required payment of premium or contribution when due.
(ii) The terminating coverage is replaced not later than 31 days after termination, by group coverage effective on the day following the termination of coverage. Both of the following provisions apply:
(A) Providing benefits identical to or benefits determined by the Commissioner to be substantially equivalent to or in excess of those provided by the terminating coverage.
(B) The premium for which is calculated in a manner consistent with paragraph (6).
(8) Notwithstanding this section, a converted policy issued to an individual who at the time of conversion is covered by another long-term care insurance policy that provides benefits on the basis of incurred expenses, may contain a provision that results in a reduction of benefits payable if the benefits provided under the additional coverage, together with the full benefits provided by the converted policy, would result in payment of more than 100% of incurred expenses. The provision shall only be included in the converted policy if the converted policy also provides for a premium decrease or refund which reflects the reduction in benefits payable.
(9) The converted policy may provide that the benefits payable under the converted policy, together with the benefits payable under the group policy from which conversion is made, may not exceed those that would have been payable had the individual's coverage under the group policy remained in force and effect.
(10) Notwithstanding this section, an insured individual whose eligibility for group long-term care coverage is based upon the individual's relationship to another person shall be entitled to continuation of coverage under the group policy upon termination of the qualifying relationship by death or dissolution of marriage.
(11) For the purposes of this section a ''managed-care plan'' is a health care or assisted living arrangement designed to coordinate patient care or control costs through utilization review, case management or use of specific provider networks.
(e) Discontinuance and replacement. If a group long-term care policy is replaced by another group long-term care policy issued to the same policyholder, the succeeding insurer shall offer coverage to all persons covered under the previous group policy on its date of termination. Coverage provided or offered to individuals by the insurer and premiums charged to persons under the new group policy may not result in an exclusion for preexisting conditions that would have been covered under the group policy being replaced and may not vary or otherwise depend on the individual's health or disability status, claim experience or use of long-term care services.
(f) Premium rate increase.
(1) The premium charged to an insured may not increase due to either of the following:
(i) The increasing age of the insured at ages beyond 65.
(ii) The duration the insured has been covered under the policy.
(2) The purchase of additional coverage may not be considered a premium rate increase, but for purposes of the calculation required under § 89a.123 (relating to nonforfeiture benefit requirement), the portion of the premium attributable to the additional coverage shall be added to and considered part of the initial annual premium.
(3) A reduction in benefits may not be considered a premium change, but for purpose of the calculation required under § 89a.123, the initial annual premium shall be based on the reduced benefits.
(g) Electronic enrollment for group policies.
(1) In the case of a group defined in section 1103 of the act (40 P. S. § 991.1103), a requirement that a signature of an insured be obtained by an agent or insurer shall be deemed satisfied if the following conditions are met:
(i) The consent is obtained by telephonic or electronic enrollment by the group policyholder or insurer. A verification of enrollment information shall be provided to the enrollee.
(ii) The telephonic or electronic enrollment provides necessary and reasonable safeguards to assure the accuracy, retention and prompt retrieval of records.
(iii) The telephonic or electronic enrollment provides necessary and reasonable safeguards to assure that the confidentiality of individually identifiable information is maintained.
(2) The insurer shall make available, upon request of the Commissioner, records that will demonstrate the insurer's ability to confirm enrollment and coverage amounts.
§ 89a.106. Unintentional lapse.
(a) Each insurer offering long-term care insurance shall, as a protection against unintentional lapse, comply with the following conditions:
(1) Notice before lapse or termination. An individual long-term care policy or certificate may not be issued until the insurer has received from the applicant either a written designation of at least one person, in addition to the applicant, who is to receive notice of lapse or termination of the policy or certificate for nonpayment of premium, or a written waiver dated and signed by the applicant electing not to designate additional persons to receive notice. The applicant has the right to designate at least one person who is to receive the notice of termination, in addition to the insured. Designation may not constitute acceptance of liability on the third party for services provided to the insured. The form used for the written designation must provide space clearly designated for listing at least one person. The designation shall include each person's full name and home address. In the case of an applicant who elects not to designate an additional person, the waiver shall state: ''Protection against unintended lapse. I understand that I have the right to designate at least one person other than myself to receive notice of lapse or termination of this long-term care insurance policy for nonpayment of premium. I understand that notice will not be given until 30 days after a premium is due and unpaid. I elect NOT to designate a person to receive this notice.'' The insured shall be able to change the written designation at any time. The insurer shall notify the insured of the right to change this written designation, at least once every 2 years.
(2) Deduction plans. When the policyholder or certificateholder pays premium for a long-term care insurance policy or certificate through a payroll or pension deduction plan, the requirements contained in paragraph (1) need not be met until 60 days after the policyholder or certificateholder is no longer on the payment plan. The application or enrollment form for those policies or certificates shall clearly indicate the payment plan selected by the applicant.
(3) Lapse or termination for nonpayment of premium. No individual long-term care policy or certificate may lapse or be terminated for nonpayment of premium unless the insurer, at least 30 days before the effective date of the lapse or termination, has given notice to the insured and to those persons designated under paragraph (1), at the address provided by the insured for purposes of receiving notice of lapse or termination. Notice shall be given by first class United States mail, postage prepaid; and notice may not be given until 30 days after a premium is due and unpaid. Notice shall be deemed to have been given as of 5 days after the date of mailing.
(b) Reinstatement. In addition to the requirement in subsection (a), a long-term care insurance policy or certificate shall include a provision that provides for reinstatement of coverage, in the event of lapse if the insurer is provided proof that the policyholder or certificateholder was cognitively impaired or had a loss of functional capacity before the grace period contained in the policy expired. This option shall be available to the insured if requested within 5 months after termination and shall allow for the collection of a past due premium, when appropriate. The standard of proof of cognitive impairment or loss of functional capacity may not be more stringent than the benefit eligibility criteria on cognitive impairment or the loss of functional capacity contained in the policy and certificate.
§ 89a.107 Required disclosure provisions.
(a) Renewability. Individual long-term care insurance policies shall contain a renewability provision.
(1) The provision shall be appropriately captioned, shall appear on the first page of the policy and shall clearly state that the coverage is guaranteed renewable or noncancellable. This provision does not apply to policies that do not contain a renewability provision, and under which the right to nonrenew is reserved solely to the policyholder.
(2) A long-term care insurance policy or certificate, other than one in which the insurer does not have the right to change the premium, shall include a statement that premium rates may change.
(b) Riders and endorsements. Except for riders or endorsements by which the insurer effectuates a request made in writing by the insured under an individual long-term care insurance policy, all riders or endorsements added to an individual long-term care insurance policy after date of issue or at reinstatement or renewal that reduce or eliminate benefits or coverage in the policy shall require signed acceptance by the individual insured. After the date of policy issue, a rider or endorsement which increases benefits or coverage with a concomitant increase in premium during the policy term shall be agreed to in writing signed by the insured, except if the increased benefits or coverage are required by law. When a separate additional premium is charged for benefits provided in connection with riders or endorsements, the premium charge shall be set forth in the policy, rider or endorsement.
(c) Payment of benefits. A long-term care insurance policy that provides for the payment of benefits based on standards described as ''usual and customary,'' ''reasonable and customary'' or words of similar import shall include a definition of these terms and an explanation of the terms in its accompanying outline of coverage.
(d) Limitations. If a long-term care insurance policy or certificate contains limitations with respect to preexisting conditions, the limitations shall appear as a separate paragraph of the policy or certificate and shall be labeled as ''Preexisting Condition Limitations.''
(e) Other limitations or conditions on eligibility for benefits. A long-term care insurance policy or certificate containing limitations or conditions for eligibility other than those prohibited in sections 1105 and 1108 of the act (40 P. S. §§ 991.1105 and 991.1108) shall set forth a description of the limitations or conditions, including the required number of days of confinement, in a separate paragraph of the policy or certificate and shall label this paragraph ''Limitations or Conditions on Eligibility for Benefits.''
(f) Benefit triggers. Activities of daily living and cognitive impairment shall be used to measure an insured's need for long term care and shall be described in the policy or certificate in a separate paragraph and shall be labeled ''Eligibility for the Payment of Benefits.'' Additional benefit triggers shall also be explained in this section. If these triggers differ for different benefits, explanation of the trigger shall accompany each benefit description. If an attending physician or other specified person must certify a certain level of functional dependency in order to be eligible for benefits, this too shall be specified.
(g) Disclosure statement--qualified. A qualified long-term care insurance contract shall include a disclosure statement in the policy and in the outline of coverage as contained in § 89a.126(e)(3) (relating to standard format outline of coverage) that the policy is intended to be a qualified long-term care insurance contract under section 7702B(b) of the Internal Revenue Code of 1986 (26 U.S.C.A. § 7702B(b)).
(h) Disclosure statement--nonqualified. A nonqualified long-term care insurance contract shall include a disclosure statement in the policy and in the outline of coverage as contained in § 89a.126(e)(3) that the policy is not intended to be a qualified long-term care insurance contract.
§ 89a.108. Required disclosure of rating practices to consumers.
(a) This section shall apply as follows:
(1) Except as provided in paragraph (2), this section applies to a long-term care policy or certificate issued in this Commonwealth on or after _____ (Editor's Note: The blank refers to a date 6 months after the effective date of adoption of this proposal.).
(2) For certificates issued on or after _____ (Editor's Note: The blank refers to the effective date of adoption of this proposal.) under a group long-term care insurance policy as defined in section 1103 of the act (40 P. S. § 991.1103), which policy was in force on _____ (Editor's Note: The blank refers to the effective date of adoption of this proposal.) this section shall apply on the policy anniversary following _____ (Editor's Note: The blank refers to a date 12 months after the effective date of adoption of this proposal.).
(b) Other than policies for which no applicable premium rate or rate schedule increases can be made, insurers shall provide all of the information listed in this subsection to the applicant at the time of application or enrollment, unless the method of application does not allow for delivery at that time. In such a case, an insurer shall provide all of the information listed in this section to the applicant no later than at the time of delivery of the policy or certificate.
(1) A statement that the policy may be subject to rate increases in the future.
(2) An explanation of potential future premium rate revisions, and the policyholder's or certificateholder's option in the event of a premium rate revision.
(3) The premium rate or rate schedules applicable to the applicant that will be in effect until a request is made for an increase.
(4) A general explanation for applying premium rate or rate schedule adjustments that shall include both of the following:
(i) A description of when premium rate or rate schedule adjustments will be effective (for example, next anniversary date, next billing date).
(ii) The right to a revised premium rate or rate schedule as provided in paragraph (2) if the premium rate or rate schedule is changed.
(5) The following information:
(i) Information regarding each premium rate increase on this policy form or similar policy forms over the past 10 years for this Commonwealth or any other state that, at a minimum, identifies all of the following:
(A) The policy forms for which premium rates have been increased.
(B) The calendar years when the form was available for purchase.
(C) The amount or percent of each increase. The percentage may be expressed as a percentage of the premium rate prior to the increase, and may also be expressed as minimum and maximum percentages if the rate increase is variable by rating characteristics.
(ii) The insurer may, in a fair manner, provide additional explanatory information related to the rate increases.
(iii) An insurer shall have the right to exclude from the disclosure premium rate increases that only apply to blocks of business acquired from nonaffiliated insurers or the long-term care policies acquired from nonaffiliated insurers when those increases occurred prior to the acquisition.
(iv) If an acquiring insurer files for a rate increase on a long-term care policy form acquired from nonaffiliated insurers or a block of policy forms acquired from nonaffiliated insurers on or before the later of _____ (Editor's Note: The blank refers to the effective date of adoption of this proposal.) or the end of a 24-month period following the acquisition of the block or policies, the acquiring insurer may exclude that rate increase from the disclosure. However, the nonaffiliated selling company shall include the disclosure of that rate increase in accordance with subparagraph (i).
(v) If the acquiring insurer in subparagraph (iv) files for a subsequent rate increase, even within the 24-month period, on the same policy form acquired from nonaffiliated insurers or block of policy forms acquired from nonaffiliated insurers referenced in subparagraph (iv), the acquiring insurer shall make all disclosures required by this paragraph, including disclosure of the earlier rate increase referenced in subparagraph (iv).
(c) An applicant shall sign an acknowledgement at the time of application, unless the method of application does not allow for signature at that time, that the insurer made the disclosure required under subsection (b)(1) and (5). If due to the method of application the applicant cannot sign an acknowledgement at the time of application, the applicant shall sign no later than at the time of delivery of the policy or certificate.
(d) An insurer shall use the forms in Appendices B and F (relating to long term care insurance personal worksheet; and rate information) to comply with the requirements of subsections (a) and (b).
(e) An insurer shall provide notice of an upcoming premium rate schedule increase to all policyholders or certificateholders, if applicable, at least 45 days prior to the implementation of the premium rate schedule increase by the insurer for the policyholder or certificateholder. The notice shall include the information required by subsection (b) when the rate increase is implemented.
§ 89a.109. Initial filing requirements.
(a) This section applies to a long-term care policy issued in this Commonwealth on or after _____ (Editor's Note: The blank refers to a date 6 months after the effective date of adoption of this proposal.).
(b) An insurer shall provide the information listed in this subsection to the Commissioner prior to making a long-term care insurance form available for sale subject to the Accident and Health Filing Reform Act (40 P. S. §§ 3801--3815).
(1) A copy of the disclosure documents required in § 89a.108 (relating to required disclosure of rating practices to consumer).
(2) An actuarial certification consisting of at least the following:
(i) A statement that the initial premium rate schedule is sufficient to cover anticipated costs under moderately adverse experience and that the premium rate schedule is reasonably expected to be sustainable over the life of the form with no future premium increases anticipated.
(ii) A statement that the policy design and coverage provided have been reviewed and taken into consideration.
(iii) A statement that the underwriting and claims adjudication processes have been reviewed and taken into consideration.
(iv) A complete description of the basis for contract reserves that are anticipated to be held under the form, to include the following:
(A) Sufficient detail or sample calculations provided so as to have a complete depiction of the reserve amounts to be held.
(B) A statement that the assumptions used for reserves contain reasonable margins for adverse experience.
(C) A statement that the net valuation premium for renewal years does not increase (except for attained-age rating where permitted).
(D) A statement that the difference between the gross premium and the net valuation premium for renewal years is sufficient to cover expected renewal expenses; or if this statement cannot be made, a complete description of the situations where this does not occur.
(I) An aggregate distribution of anticipated issues may be used as long as the underlying gross premiums maintain a reasonably consistent relationship.
(II) If the gross premiums for certain age groups appear to be inconsistent with this requirement, the Commissioner may request a demonstration under subsection (c) based on a standard age distribution.
(v) A statement that the premium rate schedule is not less than the premium rate schedule for existing similar policy forms also available from the insurer except for reasonable differences attributable to benefits and a comparison of the premium schedules for similar policy forms that are currently available from the insurer with an explanation of the differences.
(c) The Commissioner may request an actuarial demonstration that benefits are reasonable in relation to premiums. The actuarial demonstration shall include either premium and claim experience on similar policy forms, adjusted for premium or benefit differences; relevant and credible data from other studies, or both. In the event the Commissioner asks for additional information under this provision, the period in subsection (a) does not include the period during which the insurer is preparing the requested information.
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