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CHAPTER 58-17B

STANDARDS FOR LONG-TERM CARE INSURANCE

58-17B-1      Scope.
58-17B-2      Definition of terms.
58-17B-3      Minimum requirements for individual policy.
58-17B-4      Adoption of rules--Standards for disclosure.
58-17B-5      Grounds for termination and certain provisions prohibited.
58-17B-5.1      Replacement of policy--Waiver of time periods.
58-17B-6      Defining "preexisting conditions"--Requirements--Exclusions for loss or confinement--Extending limitation periods.
58-17B-7      Requirements for long-term care insurance policies--Post-confinement, post-acute care, or recuperative benefits.
58-17B-8      Adoption of rules to establish loss ratio standards.
58-17B-9      Policyholder's right to return--Notice.
58-17B-10      Delivery of outline of coverage--Contents.
58-17B-11      Contents of certificate.
58-17B-12      Compliance with chapter prerequisite to advertisement, marketing, offer.
58-17B-13      Endorsement required--Cost-of-living adjustment not required.
58-17B-13.1      Establishment of standards and requirements for cost-of-living adjustment.
58-17B-14      Coverage offered to resident under group policy issued in other state--Requirements.
58-17B-15      Rules in accordance with chapter 1-26.
58-17B-16      Temporary absence from nursing home or assisted living facility--Effect on benefits for long-term care charges and other requirements--Application.


     58-17B-1.   Scope. This chapter applies to policies delivered or issued for delivery in this state on or after July 1, 1989. This law does not supersede the obligations of entities subject to this chapter to comply with other applicable insurance laws insofar as they do not conflict with this chapter. Laws and rules designed and intended to apply to medicare supplement insurance policies may not be applied to long-term care insurance. A policy which is not advertised, marketed, or offered as long-term care insurance or nursing facility insurance need not meet the requirements of this chapter.

Source: SL 1989, ch 440, § 1.


     58-17B-2.   Definition of terms. Terms used in this chapter mean:
             (1)      "Applicant,"
             (a)      In the case of an individual long-term care insurance policy, the person who seeks to contract for benefits; and
             (b)      In the case of a group long-term care insurance policy, the proposed certificate holder;
             (2)      "Certificate," any certificate issued under a group long-term care insurance policy, which policy has been delivered or issued for delivery in this state;
             (3)      "Director," the director of the Division of Insurance in this state;
             (4)      "Group long-term care insurance," a long-term care insurance policy which is delivered or issued for delivery in this state and issued to:
             (a)      One or more employers or labor organizations, or to a trust or to the trustees of a fund established by one or more employers or labor organizations, or a combination thereof, for employees or former employees or a combination thereof or for members or former members or a combination thereof, of the labor organizations; or
             (b)      Any professional, trade, or occupational association for its members or former or retired members, or combination thereof, if such association:
             (i)      Is composed of individuals all of whom are or were actively engaged in the same profession, trade or occupation; and
             (ii)      Has been maintained in good faith for purposes other than obtaining insurance; or
             (c)      An association or a trust or the trustee of a fund established, created, or maintained for the benefit of members of one or more associations. Prior to advertising, marketing, or offering such policy within this state, the association or associations, or the insurer of the association or associations, shall file evidence with the director that the association or associations have at the outset a minimum of one hundred persons and have been organized and maintained in good faith for purposes other than that of obtaining insurance; have been in active existence for at least one year; and have a constitution and bylaws which provide that:
             (i)      The association or associations hold regular meetings not less than annually to further purposes of the members;
             (ii)      Except for credit unions, the association or associations collect dues or solicit contributions from members; and
             (iii)      The members have voting privileges and representation on the governing board and committees.
                  Thirty days after such filing the association or associations will be considered to have satisfied such organizational requirements, unless the director makes a finding that the association or associations have not satisfied those organizational requirements.
             (d)      A group other than as described in this section subject to a finding by the director that:
             (i)      The issuance of the group policy is not contrary to the best interest of the public;
             (ii)      The issuance of the group policy would result in economies of acquisition or administration; and
             (iii)      The benefits are reasonable in relation to the premiums charged;
             (5)      "Guaranteed renewable,"
             (a)      The insured has the right to continue the long-term care insurance in force by the timely payment of premiums; and
             (b)      The insurer has no unilateral right to make any change in provisions of the policy or rider while the insurance is in force and cannot decline to renew the policy. However, rates may be revised by the insurer on a class basis subject to approval by the Division of Insurance;
             (6)      "Long-term care insurance," any insurance policy or rider advertised, marketed, offered, or designed to provide coverage for not less than twelve consecutive months for each covered person on an expense incurred, indemnity, prepaid, or other basis; for one or more necessary or medically necessary diagnostic, preventive, therapeutic, rehabilitative, maintenance or personal care services, provided in a setting other than an acute care unit of a hospital. Such term includes group and individual policies or riders whether issued by insurers; fraternal benefit societies; nonprofit health, hospital and medical service corporations; prepaid health plans; health maintenance organizations or any similar organization. Long-term care insurance does not include any insurance policy which is offered primarily to provide basic medicare supplement coverage, basic hospital expense coverage, basic medical-surgical expense coverage, hospital confinement, accident only coverage, specified disease or specified accident coverage or limited benefit health coverage;
             (7)      "Mental or nervous disorder," may not be defined more restrictively than including neurosis, psychoneurosis, psychopathy, psychosis, or mental or emotional disease or disorder. However, no policy, contract or rider may exclude or limit benefits on the basis of organic brain disease, including alzheimer's disease or senile dementia;
             (8)      "Policy," any policy, contract, subscriber agreement, rider, or endorsement delivered or issued for delivery in this state by an insurer; fraternal benefit society; nonprofit health, hospital, or medical service corporation; prepaid health plan; health maintenance organization or any similar organization.

Source: SL 1989, ch 440, § 2; SL 2007, ch 289, § 1.


     58-17B-3.   Minimum requirements for individual policy. An individual policy delivered or issued for delivery may not contain provisions less favorable to the insured than "guaranteed renewable" for life.

Source: SL 1989, ch 440, § 3.


     58-17B-4.   Adoption of rules--Standards for disclosure. The director may adopt rules, pursuant to chapter 1-26, that include standards for full and fair disclosure setting forth the manner, content, and required disclosures for the sale of long-term care insurance policies, terms of renewability, initial and subsequent conditions of eligibility, nonduplication of coverage provisions, coverage of dependents, preexisting conditions, termination of insurance, continuation or conversion, probationary periods, limitations, exceptions, reductions, elimination periods, requirements for replacement, recurrent conditions, marketing, and definitions of terms.
     The director shall develop minimum standards for benefits contained in the marketing and sale of long-term care coverage or other coverages containing long-term care benefits which do not provide institutional care benefits. The standards shall be established by rules promulgated pursuant to chapter 1-26. The standards shall take into consideration the special status of persons in the long-term care insurance market and be designed to afford protection of the public through disclosure and other informational requirements, minimum requirements for coverages and exclusions contained in such policies or certificates, prohibition or prescription of marketing or sales practices, financial and solvency requirements, disclosure and requirements relating to incontestability, and requirements for the continuity of coverage through continuation, conversion, or reinstatement. The director shall design standards to prohibit unjust, unfair, or discriminatory treatment of any person insured or proposed for coverage under this chapter. The director may adopt nationally developed standards to the extent that those standards are appropriate for the state considering the impact on the availability and cost of the insurance and the health care delivery system existing in South Dakota. The standards may include minimum amounts of coverage not otherwise specified in this chapter; the definitions; type, number, and use of benefit triggers such as activities of daily living, the types of facilities, and criteria for reimbursement for assisted living centers; requirements for home health care and home health agencies; the content and use of application forms; when and how coverage must be extended; and reports from insurers and others engaged in the business of long-term care insurance relating to how insureds have been treated and how compliance with this chapter has been achieved.

Source: SL 1989, ch 440, § 4; SL 1996, ch 294.


     58-17B-5.   Grounds for termination and certain provisions prohibited. No long-term care insurance policy may:
             (1)      Be cancelled, nonrenewed, or otherwise terminated on the grounds of the age or the deterioration of the mental or physical health of the insured individual or certificate holder; or
             (2)      Contain a provision establishing a new waiting period in the event existing coverage is converted to or replaced by a new or other form within the same company, except with respect to an increase in benefits voluntarily selected by the insured individual or group policyholder; or
             (3)      Provide coverage for skilled nursing care only or provide significantly more coverage for skilled care in a facility than coverage for lower levels of care.

Source: SL 1989, ch 440, § 5; SL 1990, ch 398, § 1.


     58-17B-5.1.   Replacement of policy--Waiver of time periods. If a long-term care policy replaces another long-term care policy issued by the company or by an affiliated company, the insurer shall waive any time period applicable to preexisting conditions, waiting periods, elimination periods, and probationary periods in the new long-term care policy for similar benefits to the extent such time was spent under the original policy.

Source: SL 1990, ch 398, § 2.


     58-17B-6.   Defining "preexisting conditions"--Requirements--Exclusions for loss or confinement--Extending limitation periods. No long-term care insurance policy or certificate other than a policy or certificate thereunder issued to a group as defined in subdivision 58-17B-2(4)(a):
             (1)      Shall use a definition of "preexisting condition" which is more restrictive than the following: Preexisting condition means a condition for which medical advice or treatment was recommended by, or received from a provider of health care services, within six months preceding the effective date of coverage of an insured person;
             (2)      May exclude coverage for a loss or confinement which is the result of a preexisting condition unless such loss or confinement begins within six months following the effective date of coverage of an insured person.
     The director may extend the limitation periods set forth herein as to specific age group categories in specific policy forms upon findings that the extension is in the best interest of the public. The definition of "preexisting condition" does not prohibit an insurer from using an application form designed to elicit the complete health history of an applicant, and, on the basis of the answers on that application, from underwriting in accordance with that insurer's established underwriting standards. Unless otherwise provided in the policy or certificate, a preexisting condition, regardless of whether it is disclosed on the application, need not be covered until the waiting period described in subdivision (2) of this section expires. No long-term care insurance policy or certificates may exclude or use waivers or riders of any kind to exclude, limit or reduce coverage or benefits for specifically named or described preexisting diseases or physical conditions beyond the waiting period described in subdivision (2) of this section.

Source: SL 1989, ch 440, § 6.


     58-17B-7.   Requirements for long-term care insurance policies--Post-confinement, post-acute care, or recuperative benefits. No long-term care insurance policy may be delivered or issued for delivery in this state if the policy:
             (1)      Conditions eligibility for any benefits on a prior hospitalization requirement;
             (2)      Conditions eligibility for benefits provided in an institutional care setting on the receipt of a higher level of institutional care; or
             (3)      Conditions eligibility for any benefits other than waiver of premium, post-confinement, post-acute care or recuperative benefits on a prior institutionalization requirement.
     Post-confinement, post-acute care, or recuperative benefits do not include home health care, adult day care, or any other benefit based on treatment or services received.
     A long-term care insurance policy, continuing post-confinement, post-acute care, or recuperative benefits, shall clearly label, in a separate paragraph of the policy or certificate entitled "Limitations or Conditions on Eligibility for Benefits," such limitations or conditions, including any required number of days of confinement.
     A long-term care insurance policy or rider which conditions eligibility of non-institutional benefits on the prior receipt of institutional care may not require a prior institutional stay of more than thirty days, except waiver of premium which may not require a prior institutional stay of more than ninety days.

Source: SL 1989, ch 440, § 7; SL 1991, ch 401.


     58-17B-8.   Adoption of rules to establish loss ratio standards. The director may adopt rules, pursuant to chapter 1-26, establishing loss ratio standards for long-term care insurance policies provided that a specific reference to long-term insurance policies is contained in the regulation.

Source: SL 1989, ch 440, § 9.


     58-17B-9.   Policyholder's right to return--Notice. Long-term care insurance policyholders shall have the right to return the policy within thirty days of its delivery and to have the premium refunded if, after examination of the policy, the policyholder is not satisfied for any reason. Long-term care insurance policies shall have a notice prominently printed on the first page of the policy or attached thereto stating in substance that the policyholder shall have the right to return the policy within thirty days of its delivery and to have the premium refunded if, after examination of the policy, the policyholder is not satisfied for any reason.

Source: SL 1989, ch 440, § 10.


     58-17B-10.   Delivery of outline of coverage--Contents. An outline of coverage shall be delivered to an applicant for an individual long-term care insurance policy at the time of application for an individual policy. In the case of direct response solicitations, the insurer shall deliver the outline of coverage upon the applicant's request, but regardless of request shall make delivery no later than at the time of policy delivery. Such outline of coverage shall include:
             (1)      A description of the principal benefits and coverage provided in the policy;
             (2)      A statement of the principal exclusions, reductions and limitations contained in the policy;
             (3)      A statement of the renewal provisions, including any reservation in the policy of a right to change premiums; and
             (4)      A statement that the outline of coverage is a summary of the policy issued or applied for, and that the policy should be consulted to determine governing contractual provisions.

Source: SL 1989, ch 440, § 11.


     58-17B-11.   Contents of certificate. A certificate issued pursuant to a group long-term care insurance policy which policy is delivered or issued for delivery in this state shall include:
             (1)      A description of the principal benefits and coverage provided in the policy;
             (2)      A statement of the principal exclusions, reductions and limitations contained in the policy; and
             (3)      A statement that the group master policy determines governing contractual provision.

Source: SL 1989, ch 440, § 12.


     58-17B-12.   Compliance with chapter prerequisite to advertisement, marketing, offer. No policy may be advertised, marketed, or offered as long-term care or nursing facility insurance unless it complies with the provisions of this chapter.

Source: SL 1989, ch 440, § 13.


     58-17B-13.   Endorsement required--Cost-of-living adjustment not required. Any long-term care policy offered for sale in this state shall offer as an endorsement an annual cost-of-living adjustment in daily benefits paid.
     Nothing in this section requires an insurer that offers a long-term care policy which pays benefits on an expense-incurred basis or which is a life insurance policy with long-term care benefits as a part of the life policy or a rider to the life policy to offer a cost-of-living adjustment.

Source: SL 1989, ch 440, § 14; SL 1990, ch 398, § 3.


     58-17B-13.1.   Establishment of standards and requirements for cost-of-living adjustment. The director may promulgate rules pursuant to chapter 1-26 to establish specific standards and requirements for a cost-of-living adjustment to long-term care policies. The standards or requirements may cover:
             (1)      Types and duration of adjustments;
             (2)      Underwriting; and
             (3)      Amount of adjustment.

Source: SL 1990, ch 398, § 4.


     58-17B-14.   Coverage offered to resident under group policy issued in other state--Requirements. No group long-term care insurance coverage may be offered to a resident of this state under a group policy issued in another state to a group described in subdivisions 58-17B-2(4)(a) and (4)(d) unless this state or another state having statutory and regulatory long-term care insurance requirements substantially similar to those adopted in this state has made a determination that such requirements have been met.

Source: SL 1989, ch 440, § 16.


     58-17B-15.   Rules in accordance with chapter 1-26. Rules adopted pursuant to this chapter shall be in accordance with the provisions of chapter 1-26.

Source: SL 1989, ch 440, § 17.


     58-17B-16.   Temporary absence from nursing home or assisted living facility--Effect on benefits for long-term care charges and other requirements--Application. If an insured is receiving benefits for long-term care services in a nursing home or assisted living facility under a long-term care policy or certificate subject to this chapter, and temporarily leaves the nursing home or assisted living facility for a period not to exceed fourteen days annually, the insurer may not reduce or limit benefits for long-term care charges incurred by the insured during that temporary absence unless otherwise provided in the policy or certificate. The insurer may not consider that absence in determining whether the insured qualifies or continues to qualify for a waiver of premium or other policy or certificate benefits or eligibility requirements. This section applies to all policies or certificates that are issued after June 30, 2005.

Source: SL 2005, ch 268, § 1.


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