N.Y. Comp. Codes R. & Regs. tit. 11 § 58.1

Current through Register Vol. 46, No. 43, October 23, 2024

Section 58.1 - Rules relating to content of forms for medicare supplement insurance

The following shall be applicable to Medicare supplement insurance as defined in section 52.11 of this Title and shall be in addition to other requirements of this Part. Such rules shall apply to all Medicare supplement and Medicare select policies and certificates.

(a) Definitions.

(1) Subject to any provision dealing with preexisting conditions, incontestability or extension of benefits, the terms accident, accidental injury, or accidental means shall be defined to employ "result'' language and shall not include words which establish an accidental means test or use words such as "external, violent, visible wounds'' or similar words of description or characterization. The definition shall not be more restrictive than the following: "Injury or injuries for which benefits are provided means accidental bodily injury sustained by the insured person which is the direct result of an accident, independent of disease or bodily infirmity or any other cause.'' The definition may provide that injuries shall not include injuries for which benefits are provided under any State or Federal workers' compensation, employers' liability or occupational disease law, or benefits to the extent provided for any loss, or portion thereof, for which mandatory automobile no-fault benefits are recovered or recoverable.

(2) Applicant means:

(i) in the case of an individual Medicare supplement policy, the person who seeks to contract for insurance benefits; and

(ii) in the case of a group Medicare supplement policy, the proposed certificateholder.

(3) Benefit period or Medicare benefit period shall not be defined more restrictively than as defined in the Medicare program.

(4) Certificate means any certificate delivered or issued for delivery in this State regardless of the situs of delivery of the group Medicare supplement policy.

(5) Certificate form means the form on which the certificate is delivered or issued for delivery by the issuer.

(6) The terms convalescent nursing home, extended care facility, or skilled nursing facility shall not be defined more restrictively than as defined in the Medicare program.

(7)

(i) The term creditable coverage means, with respect to an individual, coverage of the individual provided under any of the following:

(a) a group health plan;

(b) health insurance coverage;

(c) part A or part B of title XVIII of the Social Security Act (Medicare);

(d) title XIX of the Social Security Act (Medicaid), other than coverage consisting solely of benefits under section 1928;

(e) chapter 55 of title 10, United States Code (CHAMPUS and TRICARE health care programs for the uniformed military services);

(f) a medical care program of the Indian Health Service or of a tribal organization;

(g) a State health benefits risk pool;

(h) a health plan offered under chapter 89 of title 5, United States Code (Federal Employees Health Benefits Program);

(i) a public health plan;

(j) a health benefit plan under section 5(e) of the Peace Corps Act (22 U.S.C. section 2504 [e]); and

(k) Medicare supplement insurance, Medicare select coverage or Medicare Advantage plan.

(ii) Except as specified in subparagraph (i) of this paragraph, creditable coverage shall not include any coverage in relation to its provision of "excepted benefits'' as defined in section 2791(c) of the Federal Public Health Service Act (42 U.S.C. section 300gg-91 [c]) and meeting the requirements for exception as set forth in section 2721(c) or (d) of the Federal Public Health Service Act (42 U.S.C. section 300gg-21 [c] and [d] or section 2763[a] or [b] of the Federal Public Health Service Act, 42 U.S.C. section 300gg-63 [a] and [b]). However, this exemption shall not be applicable to any coverage providing hospital or surgical indemnity benefits with specific dollar amounts that exceed the amounts required to meet the definitions of basic hospital and basic medical insurance in sections 52.5 and 52.6 of this Title.

(iii) For purposes of subparagraph (b)(3)(ii) of this section, credit for the time that a person was previously covered under part A or part B of title XVIII of the Social Security Act (Medicare) shall be required only if the applicant submits an application for Medicare supplement insurance prior to or during the six-month period beginning with the first day of the first month in which an individual is both 65 years of age or older and is enrolled for benefits under Medicare part B.

(8) The term health care expenses shall mean expenses of health maintenance organizations associated with the delivery of health care services, which expenses are analogous to incurred losses of insurers. Expenses shall not include:

(i) home office and overhead costs;

(ii) advertising costs;

(iii) commissions and other acquisition costs;

(iv) taxes;

(v) capital costs;

(vi) administrative costs; and

(vii) claims processing costs.

(9) The term hospital may be defined in relation to its status, facilities and available services or to reflect its accreditation by the Joint Commission on Accreditation of Hospitals, but not more restrictively than as defined in the Medicare program.

(10) The term issuer includes insurance companies, fraternal benefit societies, not-for-profit health service, hospital service or medical expense indemnity corporations, health maintenance organizations, and any other entity delivering or issuing for delivery in this State Medicare supplement insurance policies or certificates.

(11) The term Medicare shall be defined in the policy and certificate. Medicare may be substantially defined as "The Health Insurance for the Aged Act, Title XVIII of the Social Security Amendments of 1965 as Then Constituted or Later Amended,'' or "Title I, Part I of Public Law 89-97, as Enacted by the Eighty-Ninth Congress of the United States of America and popularly known as the Health Insurance for the Aged Act, as then constituted and any later amendments or substitutes thereof,'' or words of similar import.

(12) Medicare advantage plan means a plan of coverage for health benefits under Medicare Part C as defined in 42 U.S.C. 1395 w - 28(b)(1), and includes:

(i) coordinated care plans that provide health care services, including but not limited to health maintenance organization plans (with or without a point-of-service option), plans offered by provider-sponsored organizations, and preferred provider organization plans;

(ii) medical savings account plans coupled with a contribution into a Medicare advantage plan medical savings account; and

(iii) Medicare advantage private fee-for-service plans.

(13) The term Medicare eligible expenses shall mean expenses of the kinds covered by Medicare Parts A and B, to the extent recognized as reasonable and medically necessary by Medicare.

(14) The term physician shall not be defined more restrictively than as defined in the Medicare program.

(15) Policy form means the form on which the policy is delivered or issued for delivery by the issuer.

(16) Secretary means the Secretary of the United States Department of Health and Human Services.

(17) Subject to any provision dealing with preexisting conditions, incontestability or extension of benefits, the term sickness shall not be defined to be more restrictive than the following: illness or disease of an insured person. The definition may be further modified to exclude sicknesses or diseases for which benefits are provided under any State or Federal workers' compensation, employers' liability or occupational disease law.

(b) Policy practices and provisions.

(1)

(i) Every Medicare supplement insurance policy must be guaranteed renewable. Subject to a group policyholder's right to terminate coverage, the term guaranteed renewable as used in this section means that the insured has the right to continue the Medicare supplement insurance in force by the timely payment of premiums and the issuer has no unilateral right to make any change in any provision of the policy or certificate while the insurance is in force except to:

(a) change benefits designed to cover cost-sharing amounts under Medicare to coincide with any changes in the applicable Medicare deductible amount and copayment percentage factors;

(b) amend the policy to meet minimum standards for Medicare supplement insurance; or

(c) revise premium rates on a class basis.

(ii) If a group Medicare supplement insurance policy provides for termination of the policy by the group policyholder then the Medicare supplement certificate shall prominently display notification of such termination right on the first page.

(2) Medicare supplement policies and certificates shall include a renewal or continuation provision. The language or specifications of such provision shall be consistent with the type of contract issued. Such provision shall be appropriately captioned and shall appear on the first page of the policy or certificate and shall include any reservation by the issuer of the right to change premiums.

(3)

(i) Notwithstanding section 52.16(c) of this Title, the only permissible preexisting condition limitations applicable to Medicare supplement insurance are ones which exclude coverage, for no more than six months after the effective date of coverage under the policy or certificate, for a condition for which medical advice was given or treatment was recommended by or received from a physician, within six months before the effective date of the coverage.

(ii) In applying a preexisting condition limitation to a covered person, an issuer shall credit the time the person was previously covered under creditable coverage, including Medicare supplement insurance, Medicare select coverage and Medicare advantage plans, if the previous creditable coverage was continuous to a date not more than 63 days prior to the enrollment date of the new coverage. For purposes of this paragraph, enrollment date means the first day of coverage of the individual under the policy or certificate or, if earlier, the first day of the waiting period that must pass with respect to an individual before such individual is eligible to be covered for benefits. Any period after the date the individual files a substantially complete application for coverage and before the first day of coverage is a waiting period.

(iii) For purposes of applying the credit of creditable coverage, an issuer shall reduce the period of any preexisting condition limitation by the aggregate of the period of creditable coverage without regard to the specific benefits covered during the period.

(iv) If a Medicare supplement insurance policy or certificate contains any limitations with respect to preexisting conditions, such limitations shall appear as a separate paragraph of the policy or certificate and be labeled as "Pre-existing Condition Limitations.''

(4) Except for permitted preexisting condition limitations as described in paragraph (3) of this subdivision, no policy or certificate may be advertised, solicited, delivered or issued for delivery in this State as a Medicare supplement policy if such policy or certificate contains limitations or exclusions on coverage that are more restrictive than those of Medicare.

(5) No Medicare supplement insurance policy or certificate in force in this State shall contain benefits that duplicate benefits provided by Medicare.

(6) A Medicare supplement policy or certificate shall not indemnify against losses resulting from sickness on a different basis than losses resulting from accidents.

(7) A Medicare supplement policy or certificate shall provide that benefits designed to cover cost-sharing amounts under Medicare will be changed automatically to coincide with any changes in the applicable Medicare deductible amount and co-payment percentage factors. Premiums may be changed to correspond with such changes, subject to approval by the superintendent.

(8) Medicare supplement insurance policies or certificates shall not provide for the payment of benefits based on standards described as "usual and customary,'' "reasonable and customary'' or words of similar import.

(9) An issuer shall provide, prior to its use, a copy of any advertisement for a Medicare supplement insurance policy or certificate intended for use in this State whether through written, radio or television medium to the superintendent for review. Such advertisement shall comply with all applicable regulations and laws of this State.

(10) Except for riders or endorsements by which the issuer effectuates a request made in writing by the insured, exercises a specifically reserved right under a Medicare supplement policy, or is required to reduce or eliminate benefits to avoid duplication of Medicare benefits, all riders or endorsements added to a Medicare supplement policy after date of issue or at reinstatement or renewal which reduce or eliminate benefits or coverage in the policy shall require a signed acceptance by the insured. After the date of policy or certificate issue, any 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, unless the benefits are required by the minimum standards for Medicare supplement insurance, or if the increased benefits or coverage is required by law. Where a separate additional premium is charged for benefits provided in connection with riders or endorsements, such premium charge shall be set forth in the policy.

(11) Medicare supplement policies and certificates shall have a notice prominently printed on the first page of the policy or certificate or attached thereto stating in substance that the policyholder or certificateholder shall have the right to return the policy or certificate within 30 days of its delivery to the policyholder or certificateholder and to receive a full refund of any premium paid therefor including any policy fees or other charges.

(12)

(i) Subject to subdivision (c) of this section, a Medicare supplement policy with benefits for outpatient prescription drugs in existence prior to January 1, 2006 shall be renewed at the option of the policyholder for current policyholders who do not enroll in Part D.

(ii) A Medicare supplement policy with benefits for outpatient prescription drugs shall not be issued after December 31, 2005.

(iii) After December 31, 2005, a Medicare supplement policy with benefits for outpatient prescription drugs may not be renewed after the policyholder enrolls in Medicare Part D unless:

(a) the policy is modified to eliminate outpatient prescription coverage for expenses of outpatient prescription drugs incurred after the effective date of the individual's coverage under a Part D plan; and

(b) premiums are adjusted to reflect the elimination of outpatient prescription drug coverage at the time of Medicare Part D enrollment, accounting for any claims paid, if applicable.

(13) If a Medicare supplement insurance policy or certificate eliminates an outpatient prescription during benefit as a result of requirements imposed by the Medicare Prescription Drug, Improvement and Modernization Act of 2003, the modified policy or certificate shall be deemed to satisfy the guaranteed renewal requirements of this subdivision.

(c) Termination; conversion; continuation; suspension and reinstitution of coverage; extension of benefits.

(1) An issuer shall not cancel or nonrenew a Medicare supplement insurance policy or certificate for any reason other than nonpayment of premium or material misrepresentation.

(2) An issuer shall not cancel or nonrenew a Medicare supplement insurance policy or certificate on the ground of health status of the insured.

(3) No Medicare supplement insurance policy or certificate shall provide for termination of coverage of a spouse solely because of the occurrence of an event specified for termination of coverage of the insured, other than the nonpayment of premium.

(4) If a group Medicare supplement insurance policy is replaced by another group Medicare supplement insurance policy purchased by the same policyholder, the issuer of the replacement policy shall offer coverage to all persons covered under the old group policy on its date of termination.

(5) If a group Medicare supplement insurance policy is terminated by the group policyholder and not replaced as provided in paragraph (4) of this subdivision, the issuer shall offer certificateholders an individual Medicare supplement insurance policy which (at the option of the certificateholder):

(i) provides for the same level of benefits contained in the group policy; or

(ii) provides for benefits that otherwise meet the requirements of this section.

(6) If an individual is a certificateholder in a group Medicare supplement insurance policy and the individual terminates membership in the group, the issuer shall:

(i) offer the certificateholder the conversion opportunities described in paragraph (5) of this subdivision; or

(ii) at the option of the group policyholder, offer the certificateholder continuation of coverage under the group policy.

(7)

(i) A Medicare supplement policy or certificate shall provide that benefits and premiums under the policy or certificate shall be suspended at the request of the policyholder or certificateholder for the period (not to exceed 24 months) in which the policyholder or certificateholder has applied for and is determined to be entitled to medical assistance under title XIX of the Social Security Act, but only if the policyholder or certificateholder notifies the issuer of such policy or certificate within 90 days after the date the individual becomes entitled to such assistance. Upon receipt of timely notice, the issuer shall return to the policyholder or certificateholder that portion of the premium attributable to the period of Medicaid eligibility, subject to adjustment for paid claims.

(ii) If such suspension occurs and if the policyholder or certificateholder loses entitlement to such medical assistance, such policy or certificate shall be automatically reinstituted (effective as of the date of termination of such entitlement) as of the termination of such entitlement if the policyholder or certificateholder provides notice of loss of such entitlement within 90 days after the date of such loss and pays the premium attributable to the period, effective as of the date of termination of such entitlement.

(iii) Each Medicare supplement policy or certificate shall provide that benefits and premiums under the policy or certificate shall be suspended (for any period that may be provided by Federal regulation) at the request of the policyholder or certificateholder if the policyholder or certificateholder is entitled to benefits under 42 U.S.C. section 426(b) and is covered under a group health plan (as defined in 42 U.S.C. section 1395 y [b][1][A][v]). If suspension occurs and if the policyholder or certificateholder loses coverage under the group health plan, the policy or certificate shall be automatically reinstituted (effective as of the date of loss of coverage) if the policyholder or certificateholder provides notice of loss of coverage within 90 days after the date of the loss and pays the premium attributable to the period, effective as of the date of termination of enrollment in the group health plan.

(iv) Reinstitution of such coverages:

(a) shall not provide for any waiting period with respect to treatment of preexisting conditions;

(b) shall provide for resumption of coverage that is substantially equivalent to coverage in effect before the date of such suspension. If the suspended Medicare supplement policy provided coverage for outpatient prescription drugs, reinstitution of the policy for Medicare Part D enrollees shall be without coverage for outpatient prescription drugs and shall otherwise provide substantially equivalent coverage to the coverage in effect before the date of suspension; and

(c) shall provide for classification of premiums on terms at least as favorable to the policyholder or certificateholder as the premium classification terms that would have applied to the policyholder of certificateholder had the coverage not been suspended.

(8) Termination of a Medicare supplement policy or certificate shall be without prejudice to any continuous loss which commenced while the policy or certificate was in force, but the extension of benefits beyond the period during which the policy or certificate was in force may be predicated upon the continuous total disability of the insured, limited to the duration of the policy benefit period, if any, or payment of the maximum benefits. If no specific benefit period is provided, an extended benefit period of at least 12 months must be included in the policy or certificate. A loss shall commence when a medical service, whether or not covered by the policy or certificate, is rendered for the condition causing total disability. Receipt of Medicare Part D benefits will not be considered in determining a continuous loss.

(d) Applications for Medicare supplement insurance. In addition to the requirements set forth in section 52.51 of this Title, the following provisions shall apply to applications for Medicare supplement insurance:

(1) Applications may not contain any questions dealing with the health or health history of the applicant and no physical examination may be requested.

(2) Applications for Medicare supplement insurance shall include a conspicuous bold face notice advising the applicant that the sale of a Medicare supplement policy is prohibited where an individual has a Medicare supplement policy in force and does not desire to replace the existing policy or where the Medicare supplement policy would duplicate benefits to which the individual is entitled under a Medicare advantage plan.

(3) All applications for Medicare supplement insurance shall include the right to apply for standardized Medicare supplement benefit plans "A" and "B" and either "D" or "G" as well as any of the other Medicare supplement insurance benefit plans permitted by this section. All applications for Medicare supplement insurance shall also include the right for individuals who first become eligible for Medicare before January 1, 2020 based on age or disability to apply for standardized Medicare supplement benefit plans "C" or "F", or both plans "C" and "F" if sold by the insurer prior to January 1, 2020.

(4) In recommending the purchase or replacement of any Medicare supplement policy or certificate, an agent shall make reasonable efforts to determine the appropriateness of a recommended purchase or replacement. The application for Medicare supplement insurance taken by an agent shall include, or have attached thereto, a statement signed by the agent as follows:

"I have reviewed the current health insurance coverage of the applicant and find that additional coverage of the type and amount applied for is appropriate for the applicant's needs.''

(5) Any sale of a Medicare supplement insurance policy or certificate that will provide an individual with more than one Medicare supplement policy or certificate or duplicate benefits to which an individual is entitled under a Medicare advantage plan is prohibited.

(6) Application forms shall include the following questions and statements designed to elicit information as to whether, as of the date of the application, the applicant for a policy or certificate has currently Medicare supplement, Medicare advantage, Medicaid coverage, or another accident and health insurance policy or certificate in force and whether the Medicare supplement policy or certificate being applied for is intended to replace such existing coverage. A supplementary application or other form to be signed by the applicant containing such questions and statements may be used. Where the application is taken by an agent, such application or supplementary application form shall also be signed by the agent.

(i) Statements.

(a) You do not need more than one Medicare supplement policy or certificate.

(b) If you purchase this policy (certificate), you may want to evaluate your existing health coverage and decide if you need multiple coverages.

(c) You may be eligible for benefits under Medicaid and may not need a Medicare supplement policy (certificate).

(d) If, after purchasing this policy, you become eligible for Medicaid, the benefits and premiums under your Medicare supplement policy (certificate) may be suspended, if requested, during your entitlement to benefits under Medicaid for 24 months. You must request this suspension within 90 days of becoming eligible for Medicaid. If you are no longer entitled to Medicaid, your suspended Medicare supplement policy (certificate) (or, if that is no longer available, a substantially equivalent policy) will be reinstituted if requested within 90 days of losing Medicaid eligibility. If the Medicare supplement policy provided coverage for outpatient prescription drugs and you enrolled in Medicare Part D while your policy was suspended, the reinstituted policy will not have outpatient prescription drug coverage, but will otherwise be substantially equivalent to your coverage before the date of the suspension.

(e) If you are eligible for, and have enrolled in a Medicare supplement policy by reason of disability and you later become covered by an employer or union-based group health plan, the benefits and premiums under your Medicare supplement policy can be suspended, if requested, while you are covered under the employer or union-based group health plan. If you suspend your Medicare supplement policy under these circumstances, and later lose your employer or union-based group health plan, your suspended Medicare supplement policy (or, if that is no longer available, a substantially equivalent policy) will be reinstituted if requested within 90 days of losing your employer or union-based group health plan. If the Medicare supplement policy provided coverage for outpatient prescription drugs and you enrolled in Medicare Part D while your policy was suspended, the reinstituted policy will not have outpatient prescription drug coverage, but will otherwise be substantially equivalent to your coverage before the date of the suspension.

(f) Counseling services may be available in your state to provide advice concerning your purchase of Medicare supplement insurance and concerning medical assistance through the State Medicaid Program, including benefits as a qualified Medicare beneficiary (QMB) and a specified low-income Medicare beneficiary (SLMB).

(ii) Questions. To the best of your knowledge and belief:

(Please mark Yes or No below with an "X'')

(a)

(1) Did you turn age 65 in the last 6 months?

Yes _____ No _____

(2) Did you enroll in Medicare Part B in the last 6 months?

Yes _____ No _____

If yes, what is the effective date?

(b) Are you covered for medical assistance through the state Medicaid program? (NOTE TO APPLICANT: If you are participating in a "Spend-Down Program'' and have not met your "Share of Cost,'' please answer NO to this question.)

Yes _____ No _____

If yes,

(1) Will Medicaid pay your premiums for this Medicare supplement policy?

Yes _____ No _____

(2) Do you receive any benefits from Medicaid OTHER THAN payments toward your Medicare Part B premium?

Yes _____ No _____

(c)

(1) If you had coverage from any Medicare Advantage plan other than original Medicare within the past 63 days (for example, a Medicare HMO, PPO or PFFS), fill in your start and end dates below. If you are still covered under the Medicare Advantage plan, leave END DATE blank.

START DATE _____ END DATE _____

(2) If you are still covered under the Medicare Advantage plan, do you intend to replace your current coverage with this new Medicare supplement policy?

Yes _____ No _____

(3) Was this your first time in this type of Medicare Advantage plan?

Yes _____ No _____

(4) Did you drop a Medicare supplement policy to enroll in the Medicare Advantage plan?

Yes _____ No _____

(d)

(1) Do you have another Medicare supplement or Medicare Select policy or certificate in force?

Yes _____ No _____

(2) If so, with what company, and what plan do you have?

_____

(3) If so, do you intend to replace your current Medicare supplement or Medicare Select policy or certificate with this policy or certificate?

Yes _____ No _____

(e) Have you had coverage under any other health insurance policy or certificate within the past 63 days? (For example, an employer, union, or individual plan)

Yes _____ No _____

(1) If so, with what company and what kind of policy?

____________

____________

____________

____________

(2) What are your dates of coverage under the other policy?

START DATE _____ END DATE _____

(If you are still covered under the other policy, leave END DATE blank.)

(7) Where the application is taken by an agent, the agent shall list on the application form any other accident and health insurance policies (including Medicare supplement insurance policies) the agent has sold to the applicant. The agent shall:

(i) list all policies sold which are still in force; and

(ii) list all policies sold in the past five years which are no longer in force.

(8) In the case of a direct response issuer, a copy of the application or supplemental form, signed by the applicant and acknowledged by the issuer, shall be returned to the applicant by the issuer upon delivery of the policy (certificate).

(9) Where the policy or certificate contains a preexisting conditions limitation, the application shall include a question to elicit information that is sufficient to allow the issuer to make a determination as to whether the applicant for the policy or certificate is eligible for a limitation credit as is provided for in section 58.1(b)(3)(ii) of this Part.

(10) With regard to individuals who are eligible for Medicare by reason of age, in no event may an issuer solicit coverage or accept applications more than 90 days prior to the month in which an individual has his or her 65th birthday.

(e) Rules relating to the replacement of health coverage with Medicare supplement insurance coverage.

(1) Upon determining that a sale of a Medicare supplement insurance or Medicare select policy or certificate will involve replacement of accident and health insurance (including Medicare supplement insurance, Medicare select or Medicare advantage coverage), health maintenance organization coverage or any employer-provided health benefit arrangement, an issuer, other than a direct response issuer, or its agent, shall furnish the applicant, prior to issuance or delivery of the Medicare supplement or Medicare select policy or certificate, a notice regarding replacement of coverage. One copy of such notice signed by the applicant and the agent, except where the coverage is sold without an agent, shall be provided to the applicant and an additional signed copy shall be retained by the issuer. A direct response issuer shall deliver to the applicant at the time of the issuance of the policy the notice regarding replacement of coverage.

(2) The notice required by paragraph (1) of this subdivision for an issuer shall be provided in substantially the following form in no less than 12-point type:

NOTICE TO APPLICANT REGARDING REPLACEMENT

OF ACCIDENT AND HEALTH INSURANCE, HMO COVERAGE OR

EMPLOYER-PROVIDED HEALTH BENEFIT ARRANGEMENT

(Insurance Company's Name and Address)

SAVE THIS NOTICE! IT MAY BE IMPORTANT TO YOU IN THE FUTURE.

According to (your application) (information you have furnished), you intend to terminate existing accident and health insurance, health maintenance organization coverage or employer-provided health benefit coverage and replace it with a policy (certificate) to be issued by (Company Name) Insurance Company. Your new policy (certificate) will provide thirty (30) days within which you may decide without cost whether you desire to keep the policy (certificate).

You should review this new coverage carefully. Compare it with all health coverage you now have and evaluate the need for existing coverage that may duplicate this policy (certificate). Terminate your present coverage only if, after due consideration, you find that purchase of this Medicare supplement coverage is a wise decision.

STATEMENT TO APPLICANT BY ISSUER, AGENT (BROKER OR OTHER REPRESENTATIVE):

I have reviewed your current medical or health insurance coverage. The replacement of insurance involved in this transaction (does) (does not) duplicate coverage, to the best of my knowledge. The replacement policy is being purchased for the following reason(s) checked below:

_____ Additional benefits.

_____ No change in benefits, but lower premiums.

_____ Fewer benefits and lower premiums.

_____ My plan has outpatient prescription drug coverage and I am enrolling in Part D.

_____ Disenrollment from a Medicare Advantage plan. Please explain reason for disenrollment.

____________

____________

_____ Other. (please specify) ____________

____________

____________

1. Health conditions which you may presently have may be considered preexisting conditions and may not be immediately or fully covered under the new policy (certificate). This could result in denial or delay of a claim for benefits under the new policy (certificate), whereas a similar claim might have been payable under your present coverage. (This paragraph may be deleted if the replacement does not involve application of a new preexisting condition limitation.)

2. State regulation provides that in applying a preexisting condition limitation, a Medicare supplement issuer must credit the time the applicant was previously covered under creditable coverage (including Medicare supplement insurance, Medicare select coverage and Medicare Advantage plans) if the previous creditable coverage was continuous to a date not more than 63 days prior to the enrollment date of the new policy or certificate. (This paragraph may be deleted if the replacement does not involve application of a new preexisting condition limitation.)

3. If you still wish to terminate your present policy or certificate and replace it with new coverage, review the application carefully before you sign it to be certain that all information has been properly recorded.

Do not cancel your present coverage until you have received your new policy (certificate) and are sure that you want to keep it.

____________

Signature of Agent, Broker or other Representative

(Signature not required for direct response sales.)

(Insert typed name and address of issuer, agent or broker)

____________

(Applicant's Signature)

____________

(Date)

(3) If a Medicare supplement or Medicare select policy or certificate replaces another Medicare supplement policy or certificate, a Medicare select policy or certificate, a Medicare advantage plan or a policy or certificate issued pursuant to a contract under section 1876 of the Federal Social Security Act, then the replacing issuer must provide the policyholder or certificateholder with the following written notice:

"Your application for the Medicare supplement insurance policy (certificate) issued by this company indicates that you intended to terminate existing Medicare supplement insurance coverage, Medicare select coverage, Medicare Advantage plan or health maintenance organization (HMO) issued Medicare cost contract and replace it with the coverage applied for with this company. Duplicate coverage is unnecessary and you should terminate one of your existing coverages if more than one such plan is still in force.''

At the option of the issuer, such notice shall either be included with the first premium due notice mailed to the policyholder or certificateholder after the replacement coverage is issued, or sent separately within 30 days of the date of the first premium due notice, but in no event shall such notice be provided later than six months after issuance of the replacement policy or certificate.

(f) Permitted compensation arrangements.

(1) An issuer may provide commission or other compensation to an agent or other representative for the sale of a Medicare supplement policy or certificate only if the first year commission or other first year compensation is no more than 200 percent of the commission or other compensation paid for selling or servicing the policy or certificate in the second year or period.

(2) The commission or other compensation provided in subsequent (renewal) years must be the same as that provided in the second year or period and must be provided for no fewer than five renewal years.

(3) No issuer shall provide compensation to its agents or other producers and no agent or producer shall receive compensation greater than the renewal compensation payable by the replacing issuer on renewal policies or certificates if an existing Medicare supplement insurance policy or certificate, Medicare select policy or certificate, Medicare advantage plan or a policy or certificate issued pursuant to a contract under section 1876 of the Federal Social Security Act is replaced by a Medicare supplement insurance or Medicare select policy or certificate.

(4) For purposes of this subdivision, "compensation'' includes pecuniary or non-pecuniary remuneration of any kind relating to the sale or renewal of the policy or certificate including but not limited to bonuses, gifts, prizes, awards and finder's fees.

(g) Standards for marketing.

(1) An issuer, directly or through its agents or other producers, shall:

(i) Establish marketing procedures to assure that any comparison of policies by its agents or other producers will be fair and accurate.

(ii) Establish marketing procedures to assure excessive insurance is not sold or issued.

(iii) Display prominently by type, stamp or other appropriate means, on the first page of the policy the following:

"Notice to buyer: This policy may not cover all of your medical expenses.''

(iv) Inquire and otherwise make every reasonable effort to identify whether a prospective applicant or enrollee for Medicare supplement insurance already has accident and health insurance and the types and amount of any such insurance.

(v) Establish auditable procedures for verifying compliance with this subdivision.

(2) In addition to the practices prohibited in article 24 of the Insurance Law, the following acts and practices are prohibited.

(i) Twisting. Knowingly making any misleading representation or incomplete or fraudulent comparison of any insurance policies or insurers for the purpose of inducing, or tending to induce, any person to lapse, forfeit, surrender, terminate, retain, pledge, assign, borrow on, or convert any insurance policy or to take out a policy of insurance with another insurer.

(ii) High pressure tactics. Employing any method of marketing having the effect of or tending to induce the purchase of insurance through force, fright, threat whether explicit or implied, or undue pressure to purchase or recommend the purchase of insurance.

(iii) Cold lead advertising. Making use directly or indirectly of any method of marketing which fails to disclose in a conspicuous manner that a purpose of the method of marketing is solicitation of insurance and that contact will be made by an insurance agent or insurance company.

(h) Reporting of multiple policies.

(1) On or before March 1st of each calendar year, an issuer shall report the following information for every individual resident of this State for which the issuer has in force more than one Medicare supplement insurance policy or certificate:

(i) policy and certificate number;

(ii) date of issuance; and

(iii) state of issuance.

(2) The items set forth above must be grouped by individual policyholder.

(3) Issuers shall use the following reporting form to comply with the requirements of this subdivision.

FORM FOR REPORTING MULTIPLE

MEDICARE SUPPLEMENT POLICIES

Company Name: ____________

Address: ____________

____________

Phone Number ____________

Due: March 1, annually

The purpose of this form is to report the following information on each resident of this State who has in force more than one Medicare supplement policy or certificate. The information is to be grouped by individual policyholder.

Policy and Date of State of

Certificate# Issuance Issuance

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Signature

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Name and Title (please type)

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Date

(i) Open enrollment.

(1) An issuer shall not deny or condition the issuance or effectiveness of any Medicare supplement policy or certificate available for sale in this State, nor discriminate in the pricing of such a policy or certificate because of the health status, claims experience, receipt of health care, or medical condition of an applicant. Applicants must be accepted at all times throughout the year for any Medicare supplement insurance benefit plan available from an issuer.

(2) The requirements of paragraph (1) of this subdivision shall be applicable to applicants enrolled in Medicare whether enrolled by reason of age or by reason of disability.

(3) Paragraph (1) of this subdivision shall not be construed as preventing an issuer from applying a preexisting condition limitation in accordance with the requirements of paragraph (b)(3) of this section except as provided in paragraph (4) of this subdivision.

(4) The issuer of a Medicare supplement insurance policy or certificate may not impose an exclusion of benefits based upon a preexisting condition under such policy or certificate in the case of an individual described in 42 U.S.C. section 1395 ss(s)(3)(B) or (F) [FN*] who seeks to enroll under the Medicare supplement insurance policy or certificate during the period specified in 42 U.S.C. section 1395 ss(s)(3)(E) * and who submits evidence of the date of termination, disenrollment, or Medicare Part D enrollment along with the application for such Medicare supplement insurance policy or certificate.

(j) Prohibition against use of genetic information and requests for genetic testing. This paragraph applies to all Medicare supplement insurance policies and certificates with policy years beginning on or after May 21, 2009.

(1) An issuer of a Medicare supplement policy or certificate;

(i) shall not deny or condition the issuance or effectiveness of the policy or certificate (including the imposition of any exclusion of benefits under the policy based on a pre-existing condition) on the basis of the genetic information with respect to such individual; and

(ii) shall not discriminate in the pricing of the policy or certificate (including the adjustment of premium rates) of an individual on the basis of the genetic information with respect to such individual.

(2) An issuer of a Medicare supplement policy or certificate shall not request or require an individual or a family member of such individual to undergo a genetic test.

(3) Notwithstanding paragraph (2) of this subdivision, an issuer of a Medicare supplement policy may request, but not require, that an individual or a family member of such individual undergo a genetic test if each of the following conditions is met:

(i) The request is made pursuant to research that complies with part 46 of title 45, Code of Federal Regulations,[FN**] or equivalent Federal regulations, and any applicable State or local law or regulations for the protection of human subjects in research.

(ii) The issuer clearly indicates to each individual, or in the case of a minor child, to the legal guardian of such child, to whom the request is made that:

(a) compliance with the request is voluntary; and

(b) non-compliance will have no effect on enrollment status or premium or contribution amounts.

(iii) No genetic information collected or acquired under this subdivision shall be used for underwriting, determination of eligibility to enroll or maintain enrollment status, premium rates, or the issuance, renewal, or replacement of a policy or certificate.

(iv) The issuer notifies the secretary in writing that the issuer is conducting activities pursuant to the exception provided for under this subdivision, including a description of the activities conducted.

(v) The issuer complies with such other conditions as the secretary may by regulation require for activities conducted under this subdivision.

(4) An issuer of a Medicare supplement policy or certificate shall not request, require, or purchase genetic information for underwriting purposes.

(5) An issuer of a Medicare supplement policy or certificate shall not request, require, or purchase genetic information with respect to any individual prior to such individual's enrollment under the policy in connection with such enrollment.

(6) If an issuer of a Medicare supplement policy or certificate obtains genetic information incidental to the requesting, requiring, or purchasing of other information concerning any individual, such request, requirement, or purchase shall not be considered a violation of paragraph (5) of this subdivision if such request, requirement, or purchase is not in violation of paragraph (4) of this subdivision.

(7) For the purposes of this subdivision only:

(i) Issuer of a Medicare supplement policy or certificate also includes a third-party administrator, or other person acting for or on behalf of such issuer.

(ii) Family member means, with respect to an individual, any other individual who is a first-degree, second-degree, third-degree, or fourth-degree relative of such individual.

(iii) Genetic information means, with respect to any individual, information about such individual's genetic tests, the genetic tests of family members of such individual, and the manifestation of a disease or disorder in family members of such individual. Such term includes, with respect to any individual, any request for, or receipt of, genetic services, or participation in clinical research which includes genetic services, by such individual or any family member of such individual. Any reference to genetic information concerning an individual or family member of an individual who is a pregnant woman, includes genetic information of any fetus carried by such pregnant woman, or with respect to an individual or family member utilizing reproductive technology, includes genetic information of any embryo legally held by an individual or family member. The term "genetic information" does not include information about the sex or age of any individual, but information about the sex or age of any individual shall be used in accordance with state law or regulation.

(iv) Genetic services means a genetic test, genetic counseling (including obtaining, interpreting, or assessing genetic information), or genetic education.

(v) Genetic test means an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detect genotypes, mutations, or chromosomal changes. The term genetic test does not mean an analysis of proteins or metabolites that does not detect genotypes, mutations, or chromosomal changes; or an analysis of proteins or metabolites that is directly related to a manifested disease, disorder, or pathological condition that could reasonably be detected by a health care professional with appropriate training and expertise in the field of medicine involved.

(vi) Underwriting purposes means:

(a) rules for, or determination of, eligibility (including enrollment and continued eligibility) for benefits under the policy;

(b) the computation of premium or contribution amounts under the policy;

(c) the application of any pre-existing condition exclusion under the policy; and

(d) other activities related to the issuance, renewal, or replacement of a contract of health insurance or health benefits.

(k) Standards for claims payment.

(1) An issuer shall comply with section 1882(c)(3) of the Social Security Act (as enacted by section 4081[b][2][C] of the Omnibus Budget Reconciliation Act of 1987 [OBRA] 1987, Pub. L. No. 100-203 ) by:

(i) accepting a notice from a Medicare carrier on dually assigned claims submitted by participating physicians and suppliers as a claim for benefits in place of any other claim form otherwise required and making a payment determination on the basis of the information contained in that notice;

(ii) notifying the participating physician or supplier and the beneficiary of the payment determination;

(iii) paying the participating physician or supplier directly;

(iv) furnishing, at the time of enrollment, each enrollee with a card listing the policy name, number, and a central mailing address to which notices from a Medicare carrier may be sent;

(v) paying user fees for claim notices that are transmitted electronically or otherwise; and

(vi) providing to the secretary, at least annually, a central mailing address to which all claims may be sent by Medicare carriers.

(2) Compliance with the requirements set forth in paragraph (1) of this subdivision shall be certified on the Medicare supplement insurance experience reporting form.

(l) Filing and approval of policies and certificates and premium rates.

(1) An issuer shall not deliver or issue for delivery a policy or certificate to a resident of this State unless the policy form or certificate form has been filed with and approved by the superintendent in accordance with filing requirements and procedures prescribed by the superintendent.

(2) An issuer shall not use or change premium rates for a Medicare supplement policy or certificate unless the rates, rating schedule and supporting documentation have been filed with and approved by the superintendent in accordance with the filing requirements and procedures prescribed by the superintendent.

(3)

(i) A separate policy form or certificate form shall be used for each standard Medicare supplement benefit plan.

(ii) Except as provided in subparagraph (iii) of this paragraph, an issuer shall not file for approval more than one form of a policy or certificate of each type for each standard Medicare supplement benefit plan.

(iii) An issuer may offer, with the approval of the superintendent, up to two additional policy forms or certificate forms of the same type for the same standard Medicare supplement benefit plan, one for each of the following cases:

(a) the inclusion of new or innovative benefits; or

(b) the addition of either direct response or agent marketing method.

(iv) For the purposes of this subdivision, a type means an individual policy, a group policy, an individual Medicare select policy or a group Medicare select policy.

(4)

(i) The letter of submission accompanying Medicare supplement insurance policy forms and certificate forms submitted for approval shall identify the forms that the issuer intends to make available for purchase. The issuer shall also advise the superintendent in writing of its decision to make available for purchase a Medicare supplement insurance policy form or certificate form no later than 15 days after the issuer begins to offer such form for sale.

(ii) Except as provided in clause (a) of this subparagraph, an issuer shall continue to make available for purchase any policy form or certificate form issued after the effective date of this section that has been approved by the superintendent. A policy form or certificate form shall not be considered to be available for purchase unless the issuer has actively offered it for sale in the previous 12 months.

(a) An issuer may discontinue the availability of a policy form or certificate form if the issuer provides to the superintendent in writing its decision at least 30 days prior to discontinuing the availability of such form. After receipt of the notice by the superintendent, the issuer shall no longer offer for sale the policy form or certificate form in this State.

(b) An issuer that discontinues the availability of a policy form or certificate form pursuant to clause (a) of this subparagraph shall not file for approval a new policy form or certificate form of the same type for the same standard Medicare supplement benefit plan as the discontinued form for a period of five years after the issuer provides notice to the superintendent of the discontinuance. The period of discontinuance may be reduced if the superintendent determines that a shorter period is appropriate.

(iii) The sale or other transfer of Medicare supplement business to another issuer shall be considered discontinuance for the purposes of this paragraph.

(iv) A change in the rating structure or methodology shall be considered discontinuance under subparagraph (ii) of this paragraph unless the issuer complies with the following requirements:

(a) The issuer provides an actuarial memorandum, in a form and manner prescribed by the superintendent, describing the manner in which the revised rating methodology and resultant rates differ from the existing rating methodology and existing rates.

(b) The issuer does not subsequently put into effect a change of rates or rating factors that would cause the percentage differential between the discontinued and subsequent rates as described in the actuarial memorandum to change. Upon request, the superintendent may approve a change to such differential which is in the public interest.

(5) As soon as practicable, but prior to the effective date of enhancements in Medicare benefits, every issuer of Medicare supplement policies or certificates in this State shall submit to the superintendent for the superintendent's approval, in accordance with the applicable filing requirements and procedures prescribed by the superintendent, any appropriate riders, endorsements or policy forms needed to accomplish the Medicare supplement policy or certificate modifications necessary to eliminate benefit duplications with Medicare. Such riders, endorsements or policy forms shall provide a clear description of the Medicare supplement benefits provided by the policy or certificate.

(m) Notice of changes. As soon as practicable, but no later than 30 days prior to the annual effective date of any Medicare benefit changes, an issuer shall notify its Medicare supplement insurance policyholders and certificateholders of modifications it has made to Medicare supplement insurance policies or certificates in a format acceptable to the superintendent. Such notice shall:

(1) include a description of revisions to the Medicare program and a description of each modification made to the coverage provided under the Medicare supplement insurance policy or certificate;

(2) inform each policyholder and certificateholder as to when any premium adjustment is to be made due to changes in Medicare;

(3) be in outline form and in clear and simple terms so as to facilitate comprehension; and

(4) not contain or be accompanied by any solicitation.

(n) Notice requirements. Issuers shall comply with any notice requirements of the Federal Medicare Prescription Drug, Improvement and Modernization Act of 2003 (Pub. L. 108-173 [FN***]).

[FN*] 42 United States Code 1395 ss(2007) published by the Office of Law Revision Counsel, United States House of Representatives. See www.gpoaccess.gov. It is available from the New York State Insurance Department, Office of General Counsel, 25 Beaver Street, New York, NY 10004.

[FN**] Part 46 of Title 45, Code of Federal Regulations (2005) published by the Office of Law Revision Counsel, United States House of Representatives. See www.gpoaccess.gov. It is available from the New York State Insurance Department, Office of General Counsel, 25 Beaver Street, New York, NY 10004.

[FN***] Pub. L. 108-173. (2007) published by the Office of Law Revision Counsel, United States House of Representatives. See www.gpoaccess.gov. It is available from the New York State Insurance Department, Office of General Counsel, 25 Beaver Street, New York, NY 10004.

N.Y. Comp. Codes R. & Regs. Tit. 11 § 58.1

Amended New York State Register November 27, 2019/Volume XLI, Issue 48, eff. 1/1/2020