§ 1117 — Health insurance plans for long term care

§ 1117. Health insurance plans for long term care. (a) An authorized\ninsurer subject to the provisions of this chapter and organized to write\nthe kind of insurance specified in paragraph three of subsection (a) of\nsection one thousand one hundred thirteen of this article, a corporation\nor health maintenance organization authorized pursuant to article\nforty-three of this chapter or article forty-four of the public health\nlaw, and a fraternal benefit society organized under article forty-five\nof this chapter, may be authorized by the superintendent to issue\ncontracts in connection with plans providing benefits for long term\ncare, provided such plans satisfy the criteria set forth in subsection\n(b) of this section and the superintendent has made the determinations\nset forth in subsection (f) of this section.\n (b) The superintendent may authorize such contracts in connection with\na plan for long term care pursuant to the following criteria:\n (1) the plan's provisions are not misleading or confusing;\n (2) the plan's provisions are not inconsistent with the needs of the\npublic;\n (3) the plan's benefit structure provides options for use of long term\ncare services;\n (4) the plan, the contract and other materials describing the plan\nfully and clearly state the benefits and limitations of such plan;\n (5) the authorized insurer, health maintenance organization, or\nfraternal benefit society agrees to provide such reports of the\nexperience of the plan as may be requested by the superintendent. The\nsuperintendent may prepare abstracts and summaries of such reports at\nthe request of other government agencies for purposes of research and\nstudies related to long term care financing, provided however that the\ninsurer, health maintenance organization, or fraternal benefit society\nmay request that specified information included in the report be\nconsidered confidential; and\n (6) prior to the earlier of the execution of a policy or certificate\nin connection with a plan providing a home care benefit and/or a nursing\nhome benefit, or the payment of any premium or fee related to such a\npolicy or certificate, the authorized insurer, corporation, health\nmaintenance organization or fraternal benefit society shall provide the\nprospective insured or his or her representative with a disclosure\nstatement, which contains the following:\n (A) The maximum daily and lifetime benefit levels, if applicable,\nprovided by the policy or certificate for home care services and nursing\nhome services;\n (B) The percentage of coverage provided for home care services and\nnursing home services, if applicable, and an explanation of the\nmethodology on which the reasonable charge used in conjunction with such\npercentage amount is based;\n (C) A description of any inflation protection feature included in or\navailable for purchase under the policy or certificate and the\nadditional premium required to purchase such option or options;\n (D) (i) If available and accessible by the insurer or other entity\nfrom the department of health, the most recently-published average,\nstatewide rate for care in a nursing home, as well as the average rates\nfor care in nursing homes for both the New York city-metropolitan and\nupstate regions of the state; or\n (ii) If available and accessible by the insurer or other entity from\nthe department of health, the most recently-published map of the\nestimated average regional rates in New York state for nursing home\ncare;\n (E) A graphic demonstration of the maximum daily nursing home benefit\nlevel provided by the policy or certificate, and the impact that the\nselection of any inflation protection options would have on such maximum\ndaily nursing home benefit level;\n (F) The right of the prospective insured, upon attaining the age of\nsixty-five years, to designate a third party who will receive a copy of\nany notices of nonpayment of premiums due or notice of cancellation for\nnonpayment of premiums that is sent to the prospective insured;\n (G) (i) A written statement indicating that such policy or certificate\nmay be subject to future premium rate increases and that such rate\nincreases shall be subject to the approval or modification of the\nsuperintendent; and\n (ii) A list of past premium rate increases for such policy or\ncertificate over the previous ten years, or if such policy or\ncertificate was not offered over the previous ten years, past premium\nrate increased for policies or certificates that offer similar benefits\nover the previous ten years;\n (H) Directions on how to obtain information about the department's\nreview of any rate filing or application, contact information for the\ndepartment, and information on how to contact the authorized insurer,\ncorporation, health maintenance organization or fraternal benefit\nsociety for more information;\n (I) Whether or not there is a period in which rates will not change,\nand if so, when that time period expires;\n (J) A description of whether or not the premium may change, and if so,\nthe circumstances under which any such premium changes could occur,\nincluding whether the department must approve such changes;\n (K) Whether the policy contains provisions providing for a refund or\npartial refund of premium upon the cancellation of the policy, and if\nsuch provisions exist, provide a description of their terms;\n (L) A description of the options policyholders will have to mitigate\nany premium increases;\n (M) A description of the options policyholders will have should the\npremiums increase, and the policyholder deems it in their best interest\nto cancel the policy;\n (N) A statement that the policyholder will be given at least ninety\ndays notice before any premium change takes effect;\n (O) A statement that if the authorized insurer, corporation, health\nmaintenance organization or fraternal benefit society seeks to increase\nthe premium rate, the department will post notice of the rate filing on\nits website prior to any determination by the department; and\n (P) The right of the prospective insured to submit public comments on\nany rate filing or application regarding premium rates on the\ndepartment's website.\nFor the purpose of this paragraph, "home care services" shall have the\nsame meaning as defined in subdivision one of section thirty-six hundred\ntwo of the public health law. The prospective insured, or his or her\nrepresentative, shall acknowledge that the required disclosure has been\nmade by signing the disclosure statement prior to or contemporaneously\nwith the effective date of the policy or certificate.\nFailure to provide information required by subparagraph (D) of this\nparagraph shall not be construed as a violation of this section if such\ninformation has not been made available by the department of health.\n (c) The duration of such contracts and the extent of exposure\nthereunder by insurers, health maintenance organizations or fraternal\nbenefit societies shall be in the discretion of the superintendent.\n (d) Contracts issued pursuant to the provisions of this section shall\nbe subject to all other provisions of this chapter and the regulations\npromulgated thereunder applicable to the insurer, health maintenance\norganization, or fraternal benefit society which issues the contract,\nprovided however that in order to permit the development of long term\ncare plans, the superintendent may modify or suspend any such provision\nor regulation upon making the determinations set forth in subsection (f)\nof this section.\n (e) The superintendent may permit an authorized insurer, health\nmaintenance organization, or fraternal benefit society subject to the\nprovisions of this chapter to reinsure the risk of any long term care\nservices plan, provided such plan satisfies the requirements of this\nsection. Such reinsurance agreements shall provide for the payment of a\nreasonable premium.\n (f) The superintendent may take the actions set forth in subsections\n(a), (d) and (e) of this section only if the superintendent determines\nthat:\n (1) the plan is a legitimate approach to expand the availability of\ninsurance coverage for long term care services;\n (2) any proposed modification or suspension of a provision of this\nchapter or a regulation promulgated thereunder is essential to the\ndevelopment of long term care plans pursuant to this section, and is\ndirectly related to the essential features of such plans;\n (3) the premium rates for the long term care plan are reasonably\nrelated to the benefits provided, and are self-supporting; and\n (4) the plan proposed by the insurer, health maintenance organization,\nor fraternal benefit society, and any proposed modification or\nsuspension pursuant to subsection (d) of this section, will not cause or\nconstitute an impairment of the insurer's, health maintenance\norganization's, or fraternal benefit society's ability to satisfy its\nexisting and anticipated contracts and other obligations, including such\nstandards as the superintendent shall prescribe concerning adequate\ncapital and financial requirements.\n (g) (1) Except for certain group contracts described in paragraph four\nof this subsection, in order for premium payments for long-term care\ninsurance to qualify for purposes of section one hundred ninety,\nsubdivision twenty-five-a of section two hundred ten, subsection (aa) of\nsection six hundred six, subsection (k) of section one thousand four\nhundred fifty-six and subsection (m) of section one thousand five\nhundred eleven of the tax law, the long-term care insurance must be\napproved by the superintendent pursuant to this subsection. Prior to\napproving any such insurance, the superintendent shall conclude that it\nmeets minimum standards, including minimum loss ratio standards under\nthis section or section three thousand two hundred twenty-nine of this\nchapter and is a qualified long-term care insurance contract as defined\nin section 7702B of the internal revenue code.\n (2) (A) No insurer, agent, broker, person, business or corporation\ndoing business in or into this state shall in any manner state,\nadvertise or claim that a long-term care insurance policy qualifies for\npurposes of the above-referenced provisions of the tax law unless\neither: (i) the superintendent has issued a letter or other written\ninstrument to the insurer stating that the policy has been determined to\nqualify under this subsection, or (ii) the policy qualifies under\nparagraph four of this subsection without the need for approval by the\nsuperintendent.\n (B) Any policy which is held out or purported to be a long-term care\ninsurance policy by any insurer, agent, broker, person, business or\ncorporation doing business in or into this state which has not been\ndetermined by the superintendent to qualify and which does not qualify\nunder paragraph four of this subsection for purposes of the above\nreferenced provisions of the tax law shall so state clearly, legibly and\nin close physical proximity to any description of the policy as a\nlong-term care insurance policy that it does not so qualify. This\nsubsection shall also be deemed to cover any statement, advertisement or\nclaim concerning such policy by any insurer, agent, broker, person,\nbusiness or corporation doing business in or into this state.\n (C) Violation of this paragraph shall be considered a\nmisrepresentation under section twenty-one hundred twenty-three of this\nchapter.\n (3) The superintendent shall maintain an ongoing list of those\npolicies requiring approval of the superintendent that are found\neligible for purposes of the above-referenced provisions of the tax law.\n (4) Group contracts delivered or issued for delivery outside of the\nstate, but which are qualified long-term care insurance contracts as\ndefined in section 7702B of the internal revenue code shall be deemed to\nqualify for purposes of the provisions of the tax law specified in\nparagraph one of this subsection without the need to seek the approval\nof the superintendent pursuant to this subsection. Provided that they\notherwise meet the requirements of this paragraph, such group contracts\ninclude, but are not limited to, those offered: (a) by professional\nassociations and societies, membership organizations and not-for-profit\ngroups, or by a subsidiary or affiliated entity of any of the foregoing,\nto the members of the association, society, organization or group, and\n(b) by employers to their employees.\n (h) The department shall post on its website information describing\nthe process that it uses in reviewing and approving premium rates for\npolicies or contracts of long term care insurance.\n (i) Whenever an authorized insurer, corporation, health maintenance\norganization or fraternal benefit society submits a rate filing or\napplication to the superintendent to increase or decrease premium rates\nfor any policy or certificate subject to this section, the\nsuperintendent shall post a public notice of the rate filing or\napplication on the department's website within fourteen days. The\nsuperintendent shall provide for a process for the public to provide\ncomments on such rate filing or application electronically or in writing\nfor a period of thirty days after such public notice is posted on the\ndepartment's website.\n (j) The superintendent, upon rendering a decision regarding approval,\ndisapproval or modification of a rate filing or application, shall issue\na public notice of such decision. Such written decision and notice shall\nbe made publicly available on the department's website no later than the\ndate on which the rate filing or application is approved, disapproved,\nor modified. Such notification shall include:\n (1) a summary of the determinations made and considerations used by\nthe department regarding the approval, disapproval or modification of\nsuch rate filing or application, and\n (2) a statement with relevant detail as to why the approval,\ndisapproval or modification of the proposal is consistent with paragraph\nthree of subsection (f) of this section.\n (k) Upon receipt by an authorized insurer, corporation, health\nmaintenance organization or fraternal benefit society covered by the\nprovisions of this section of an approval or modification decision by\nthe superintendent with respect to a rate filing application with the\ndepartment, such authorized insurer, corporation, health maintenance\norganization or fraternal benefit society shall notify policyholders and\ncertificate holders of such decision no later than ninety days prior to\nthe effective date of the premium rate increase. Such notification shall\ninclude:\n (1) a description of such decision; and\n (2) a written statement conforming to the requirements set forth in\nsubparagraph (G) of paragraph six of subsection (b) of this section.\n (l) The provisions set forth in subparagraphs (G), (H), (I), (J), (K),\n(L), (M), (N), (O), and (P) of paragraph six of subsection (b) of this\nsection shall not apply to policies or certificates that are exempt from\npremium rate increases.\n