department of insurance

18 DE Admin. Code 1404

PROPOSED

PUBLIC NOTICE

1404 Long-Term Care Insurance

INSURANCE COMMISSIONER KAREN WELDIN STEWART, CIR-ML hereby gives notice of intent to adopt amendments to Department of Insurance Regulation 1404 relating to long-term care insurance. The docket number for this proposed amendment is 1377.

The purpose of the proposed amendment to regulation 1404 is to regulate recission of long-term care insurance policies and update the existing regulation 1404. The text of the proposed amendment is reproduced in the August 2010 edition of the Delaware Register of Regulations. The text can also be viewed at the Delaware Insurance Commissioner's website at: http://www.delawareinsurance.gov/departments/documents/ProposedRegs/ProposedRegs.shtml.

The Department of Insurance does not plan to hold a public hearing on the proposed changes. Any person can file written comments, suggestions, briefs, compilations of data or other materials concerning the proposed amendments. Any written submission in response to this notice and relevant to the proposed changes must be received by the Department of Insurance no later than 4:00 p.m., Tuesday September 7, 2010, and should be addressed to Mitch Crane, Esquire, Delaware Department of Insurance, 841 Silver Lake Boulevard, Dover, DE 19904, or sent by fax to 302.736.7979 or email to mitch.crane@state.de.us.

1404 Long-Term Care Insurance

The purpose of this regulation is to implement 18 Del.C. Ch. 71, to promote the public interest, to promote the availability of long-term care insurance coverage, to protect applicants for long-term care insurance, from unfair or deceptive sales or enrollment practices, to facilitate public understanding and comparison of long-term care insurance coverages, regulate rescission, and to facilitate flexibility and innovation in the development of long-term care insurance.

This regulation is issued pursuant to the authority vested in the Commissioner under 18 Del.C. §§311, and 7105 and 7107.

Except as otherwise specifically provided, this regulation applies to all long-term care insurance policies and certificates delivered or issued for delivery in this state on or after the effective date hereof, by insurers; fraternal benefit societies; nonprofit health, hospital and medical service corporations; prepaid health plans; health maintenance organizations and all similar organizations.

For the purpose of this regulation, the terms "Department," "long-term care insurance," "Commissioner," "applicant," "policy" and "certificate" shall have the meanings set forth in 18 Del.C. §§102 and 7103.

"Benefit Trigger", for the purposes of independent review, means a contractual provision in the insured's policy of long-term care insurance conditioning the payment of benefits on a determination of the insured's ability to perform activities of daily living and on cognitive impairment. For purposed of a tax-qualified long-term care insurance contract, as defined in section 7702B of the Internal Revenue Code of 1986, as amended, "benefit trigger" shall include a determination by a licensed health care practitioner that an insured is a chronically ill individual.

"Exceptional increase" means only those increases filed by an insurer as exceptional for which the Commissioner determines the need for the premium rate increase is justified:

"Incidental," as used in Section 20.10, means that the value of the long-term care benefits provided is less than ten percent (10%) of the total value of the benefits provided over the life of the policy. These values shall be measured as of the date of issue.

"Qualified actuary" means a member in good standing of the American Academy of Actuaries.

"Similar policy forms" means all of the long-term care insurance policies and certificates issued by an insurer in the same long-term care benefit classification as the policy form being considered. Certificates of groups that meet the definition in 18 Del.C. §7103(4) a are not considered similar to certificates or policies otherwise issued as long-term care insurance, but are similar to other comparable certificates with the same long-term care benefit classifications. For purposes of determining similar policy forms, long-term care benefit classifications are defined as follows: institutional long-term care benefits only, non-institutional long-term care benefits only, or comprehensive long-term care benefits.

All providers of services, including but not limited to "skilled nursing facility", "extended care facility", "convalescent nursing home", "personal care facility", "specialized care providers", "assisted living facilites", and "home care agency" shall be defined in relation to the services and facilities required to be available and the licensure, certification, registration or degree statuts of those providing or supervising the services. When the definition requires that the provider be appropriately licensed, certified or registered, it shall also state what requirements a provider must meet in lieu of licensure, certification or registration when the state in which the service is to be furnished does not require a provider of these services to be licensed, certified or registered, or when the state licenses, certifies or registers the provider of services under another name.

No long-term care insurance policy delivered or issued for delivery in this state shall use the terms set forth below, or terms of like or similar meaning, unless the terms are defined in the policy and the definitions satisfy the following requirements:

“Activities of daily living” means at least bathing, continence, dressing, eating, toileting and transferring.

"Acute Condition" means that the individual is medically unstable. Such an individual requires frequent monitoring by medical professionals, such as physicians and registered nurses, in order to maintain their health status.

"Adult day care" means a program for six (6) or more individuals, of social and health-related services provided during the day in a community group setting for the purpose of supporting frail, impaired elderly or other disabled adults who can benefit from care in a group setting outside the home.

"Bathing" means washing oneself by sponge bath; or in either a tub or shower, including the task of getting into or out of the tub or shower.

“Chronically ill” means any individual who has been certified by a Licensed Health Care Practitioner as being unable to perform, without substantial assistance from another individual, at least two activities of daily living for a period of at least ninety (90) days; or who requires substantial supervision to protect such individual from threats to health and safety due to severe cognitive impairment.

“Cognitive impairment” means a deficiency in a person’s short-term or long-term memory, orientation as to person, place, and time, deductive or abstract reasoning, or judgment as it relates to safety awareness.

"Continence" means the ability to maintain control of bowel and bladder function; or, when unable to maintain control of bowel or bladder function,

"Dressing" means putting on and taking off all items of clothing and any necessary braces, fasteners or artificial limbs.

"Eating" means feeding oneself by getting food into the body from a receptacle or by feeding tube or intravenously.

"Hands-on Assistance" means physical assistance without which the individual would not be able to perform the activity of daily living.

"Home health care services" means medical and nonmedical services provided to ill, disabled or infirm persons in their residences. Such services may include homemaker services, assistance with activities of daily living and respite care services.

"Medicare" means "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.

“Mental or nervous disorder" shall not be defined to include more than neurosis, psychoneurosis, psychopathy, psychosis, or mental or emotional disease or disorder.

"Personal care" means the provision of hands-on services to assist an individual with activities of daily living (such as bathing, eating, dressing, transferring and toileting).

"Preexisting Conditions" shall be defined in accordance with 18 Del.C. §7105 (c).

“Qualified Long-Term Care Insurance Policy” means a policy that provides coverage for qualified long-term care services that is intended to meet the requirements of §7702B(b) of the Internal Revenue Code of 1986, as amended.

“Qualified Long-Term Care Services” means necessary diagnostic, preventive therapeutic, curing, treating, mitigating and rehabilitative services and Maintenance or Personal Care Services which are required by a Chronically Ill Individual and are provided pursuant to a Plan of Care prescribed by a Licensed Health Care Practitioner.

"Skilled nursing care" "intermediate care" "personal care" "home care" and other services shall be defined in relation to the level of skill required, nature of the care and the setting in which care must be delivered.

"Toileting" means getting to and from the toilet, getting on and off the toilet, and performing associated functions.

"Transferring" means moving into or out of a bed, chair, or wheelchair.

All providers of services, including but not limited to "skilled nursing facility" "extended care facility" "intermediate care facility" "convalescent nursing home" "personal care facility" and "home care agency" shall be defined in relation to the services and facilities required to be available and the licensure or degree status of those providing or supervising the services. The definition may require that the provider be appropriately licensed or certified.

6.1 Renewability. The terms "guaranteed renewable" and "noncancellable" shall not be used in any individual long-term care insurance policy without providing further explanatory language in accordance with the disclosure requirements of section 7.0 of this regulation.

6.1.1 No such policy issued to an individual shall contain renewal provisions less favorable to the insured than "guaranteed renewable." However, the Commissioner may authorize nonrenewal on a statewide basis, on terms and conditions deemed necessary by the Commissioner, to best protect the interests of the insureds, if the insurer demonstrates: That renewal will jeopardize the insurer's solvency.

6.1.2 The term "guaranteed renewable" may be used only when the insured has the right to continue the long-term care insurance in force by the timely payment of premiums, during which period the insurer has no unilateral right to make any change in any provision of the policy or rider, and cannot decline to renew and cannot revise rates except on a class basis in accordance with section 6.1.4 below. This cost disclosure must be approved by the Commissioner and included in any solicitation and also prominently displayed on the initial policy.

6.1.3 Every long-term care insurance policy or certificate issued or delivered in this State must be "guaranteed renewable" as defined in section 6.1.2 above, and contain a cost disclosure section as defined section 6.1.46 below, and as further defined by Section 7702B(b)(1)(C) of the Internal Revenue Code of 1986, as amended.

6.1.4 The term "noncancellable" may be used only when the insured has the right to continue the long-term care insurance in force by the timely payment of premiums during which period the insurer has no right to unilatererally make any change in any provision of the insurance or in the premium rate.

6.1.5 The term "level premium" may only be used when the insurer does not have the right to change the premium.

6.1.46 Cost Disclosure Information.

6.1.46.1 The following cost disclosure information shall appear in bold print on the cover page of every individual policy and Outline of Coverage issued or delivered in this state: "This policy provides only the following price protection, and no more. Your premiums may not increase by more than X% during any given calendar year and your benefits may not decrease. Any representations that these increases will not take place are unauthorized and shall not be relied upon."

6.1.46.2 The following cost disclosure information shall appear in bold print on the cover page of every certificate and Outline of Coverage issued or delivered in this state: "This policy provides only the following price protection, and no more. Your premiums are guaranteed to remain the same for the first three (3) years this policy is in force. Your premiums may not increase by more than X% during any three year rating period. Insurers will be allowed a carry forward of the initially disclosed maximum premium increase, but said carry forward is lost within twenty-four (24) months if not utilized." Any additional language that appears under the cost disclosure section must be approved in advance by the Delaware Insurance Department. The purpose of this cost disclosure section is twofold: first, to make crystal clear to the purchaser what the maximum cost will be from year to year, and second, to prohibit the practice of low pricing during the early years of a policy followed by dramatic increases designed to produce a high ratio of cancellations when the group insured reaches that age at which its members are more likely to file claims. Therefore, this section does not permit annual increases to be accumulated and applied all at once. For example, if the price is $100 in the initial year of the policy and 10% is the represented annual maximum increase, then during the second year of the policy, the maximum allowable price is $110, the third year of the policy the maximum allowable price is not more than 110% of the price actually charges during year two of the policy. It is not permissible to charge $121 during the third year of the policy unless $110 had actually been charged during year two of the policy. In other words, any permitted annual price increase not implemented during a calendar year is thereafter waived and may not be considered in calculating future prices.

6.1.57 In addition to other requirements of this subsection, a qualified long-term care insurance contract shall be guaranteed renewable.

6.2 Limitations and Exclusions. No policy may be delivered or issued for delivery in this state as long-term care insurance if such policy limits or excludes coverage by type of illness, treatment, medical condition or accident, except as follows:

6.2.1 Preexisting conditions;

6.2.2 Mental or nervous disorders; however, this shall not permit exclusion or limitation of benefits on the basis of Alzheimer's Disease;

6.2.3 Alcoholism and drug addiction;

6.2.4 Illness, treatment or medical condition arising out of:

6.2.4.1 War or act of war (whether declared or undeclared);

6.2.4.2 Participation in a felony, riot or insurrection;

6.2.4.3 Service in the armed forces or units auxiliary thereto;

6.2.4.4 Suicide (sane or insane), attempted suicide or intentionally self-inflicted injury; or

6.2.4.5 Aviation (this exclusion applies only to non-fare-paying passengers).

6.2.5 Treatment provided in a government facility (unless otherwise required by law), services for which benefits are available under Medicare or other governmental program (except Medicaid), any state or federal workers' compensation, employer's liability or occupational disease law, or any motor vehicle no-fault law, services provided by a member of the covered person's immediate family and services for which no charge is normally made in the absence of insurance.

6.2.6 No territorial limitations are permissible, except that nothing herein shall preclude limiting benefits for specific services to a specific dollar amount, or to that dollar amount which is reasonable and prevailing in a particular geographic area which is defined and clearly delineated in the original offering or solicitation and the initial policy or certificate, or to specific providers within a particular geographic area. Moreover, nothing herein shall prohibit the limitation of services to a particular geographic area when the insured elects to receive services within that specific geographical area. For purposes of this clause, the location of receipt of services must be within 50 miles of the domicile of the insured at the time of entry therein or that area, including the nearest three nursing homes, whichever distance is greater.

6.2.7 Expenses for services or items available or paid under another long-term care insurance or health insurance policy.

6.2.8 In the case of a qualified long-term care insurance contract expenses for services or items to the extent that the expenses are reimbursable under Title XVIII of the Social Security Act or would be so reimbursable but for the application of a deductible or coinsurance amount.

6.2.9 This section 6.2 is not intended to prohibit exclusions and limitations by type of provider. However, no long-term care issuer may deny a claim because services are provided in a state other than the state of policy issued under the following conditions:

6.2.9.1 When the state other than the state of policy issue does not have the provider licensing, certification or registration required in the policy, but where the provider satisfies the policy requirements outlined for providers in lieu of licensure, certification or registration; or

6.2.9.2 When the state other than the state of policy issue licenses, certifies or registers the provider under another name.

6.3 Extension of Benefits. Termination of long-term care insurance shall be without prejudice to any benefits payable for institutionalization which began while the long-term care insurance was in force and continues without interruption after termination. Such extension of benefits beyond the period the long-term care insurance was in force may be limited to the duration of the benefit period, if any, or to payment of the maximum benefits and may be subject to any policy waiting period, and all other applicable provisions of the policy.

6.4 Continuation or Conversion.

6.4.1 Group long-term care insurance issued in this state on or after the effective date of this section shall provide covered individuals with a basis for continuation or conversion of coverage.

6.4.2 For the purposes of this section, "a basis for continuation of coverage" means a policy provision which maintains coverage under the existing group policy when such coverage would otherwise terminate and which is subject only to the continued timely payment of premium when due. Group policies which restrict provision of benefits and services to, or contain incentives to use certain providers and/or facilities may provide continuation benefits which are substantially equivalent to the benefits under the existing policy. The Commissioner shall make a determination as to the substantial equivalency of benefits, and in doing so, shall take into consideration the differences between managed care and non-managed care plans, including, but not limited to, provider system arrangements, service availability, benefit levels and administrative complexity.

6.4.3 For the purposes of this section, "a basis for conversion of coverage" means a policy provision that an individual whose coverage under the group policy would otherwise terminate or has been terminated for any reason, including discontinuance of the group policy in its entirety or with respect to an insured class, and who has been continuously insured under the group policy (and any group policy which it replaced), for at least six months immediately prior to termination, shall be entitled to the issuance of a converted policy by the insurer under whose group policy he or she is covered, without evidence of insurability.

6.4.4 For the purposes of this section, "converted policy" means an individual policy of long-term care insurance providing benefits identical to or determined by the Commissioner to be substantially equivalent to or in excess of those provided under the group policy from which conversion is made.

6.4.4.1 Where the group policy from which conversion is made restricts provision of benefits and services to, or contains incentives to use certain providers and/or facilities, the Commissioner, in making a determination as to the substantial equivalency of benefits, shall take into consideration the differences between managed care and non-managed care plans, including, but not limited to, provider system arrangements, service availability, benefit levels and administrative complexity. When the policyholder or certificate holder is no longer in the geographical area of the provider system or available services, the insurer must calculate the financial worth of the group policy and make a cash contribution toward the purchase of any health insurance policy the policyholder may select.

6.4.5 Written application for the converted policy shall be made and the first premium due, if any, shall be paid as directed by the insurer no later than thirty-one (31) days after termination of coverage under the group policy. The converted policy shall be issued effective on the day following the termination of coverage under the group policy, and shall be renewable annually.

6.4.6 Unless the group policy from which conversion is made replaced previous group coverage, the premium for the converted policy shall be calculated on the basis of the insured's age at inception of coverage under the group policy from which conversion is made. Where the group policy from which conversion is made replaced previous group coverage, the premium for the converted policy shall be calculated on the basis of the insured's age at inception of coverage under the group policy replaced.

6.4.7 Continuation of coverage or issuance of a converted policy shall be mandatory, except where:

6.4.7.1 Termination of group coverage resulted from an individual's failure to make any required payment of premium or contribution when due; or

6.4.7.2 The terminating coverage is replaced no later than thirty-one (31) days after termination, by group coverage effective on the day following the termination of coverage:

6.4.7.2.1 Providing benefits identical to or benefits determined by the Commissioner to be substantially equivalent to or in excess of those provided by the terminating coverage; and

6.4.7.2.2 The premium for which is calculated in a manner consistent with the requirements of 6.4.6 of this section.

6.4.8 Notwithstanding any other provision of this section, a converted policy issued to an individual who at the time of conversion is covered by another long-term care insurance policy which provides benefits on the basis of incurred expenses, may contain a provision which results in a reduction of benefits payable if the benefits provided under the additional coverage, together with the full benefits provided by the converted policy, would result in payment of more than 100 percent of incurred expenses. Such provision shall only be included in the converted policy if the converted policy also provides for a premium decrease or refund which reflects the reduction in benefits payable.

6.4.9 The converted policy may provide that the benefits payable under the converted policy, together with the benefits payable under the group policy from which conversion is made, shall not exceed those that would have been payable had the individual's coverage under the group policy remained in force and effect.

6.4.10 Notwithstanding any other provision of this section, any insured individual whose eligibility for group long-term care coverage is based upon his or her relationship to another person, shall be entitled to continuation of coverage under the group policy upon termination of the qualifying relationship by death or dissolution of marriage.

6.4.11 For the purposes of this section: a "Managed-Care Plan" is a health care or assisted living arrangement designed to coordinate patient care or control costs through utilization review, case management or use of specific provider networks.

6.5 Discontinuance and Replacement. If a group long-term care insurance policy is replaced by another group long-term care policy issued to the same policyholder, the succeeding insurer shall offer coverage to all persons covered under the previous group policy on its date of termination. Coverage provided or offered to individuals by the insurer and the premiums charged under the new group policy:

6.5.1 Shall not result in any exclusion for pre-existing conditions that would have been covered under the group policy being replaced; and

6.5.2 Shall not vary or otherwise depend on the individual's health or disability status, claim experience or use of long-term care services.

6.6 The premiums charged to an insured for long-term care insurance shall not increase due to either:(1) The increasing age of the insured at ages beyond sixty-five (65); or(2) The duration the insured has been covered under the policy.

6.7 The purchase of additional coverage shall not be considered a premium rate increase, but for purposes of calculation required under this regulation, the portion of the premium attributable to the additional coverage shall be added to and considered a part of the initial annual premium.

6.8 A reduction in benefits shall not be considered a premium change, but for purpose of the calculation required under this regulation, the initial annual premium shall be based on the reduced benefits.

6.79 Electronic Enrollment for Group Policies

6.79.1 In the case of a group defined in 18 Del.C. §7103(4) a. any requirement that a signature of an insured be obtained by an agent or insurer shall be deemed satisfied if:

6.79.1.1 The consent is obtained by telephonic or electronic enrollment by the group policyholder or insurer. A verification of enrollment information shall be provided to the enrollee;

6.79.1.2 The telephonic or electronic enrollment provides necessary and reasonable safeguards to assure the accuracy, retention and prompt retrieval of records; and

6.79.1.3 The telephonic or electronic enrollment provides necessary and reasonable safeguards to assure that the confidentiality of individually identifiable information is maintained.

6.79.2 The insurer shall make available, upon request of the Commissioner, records that will demonstrate the insurer’s ability to confirm enrollment and coverage amounts.

7.1 Renewability. Individual long-term care insurance policies shall contain a renewability provision consistent herewith. Such provision shall be appropriately captioned, shall appear on the first page of the policy, and shall clearly state the duration, where limited, of renewability and the duration of the term of coverage for which the policy is issued and for which it may be renewed, subject to section 6.1 hereof. This provision shall not apply to policies which do not contain a renewability provision, and under which the right to nonrenew is reserved solely to the policyholder.

7.2 Riders and Endorsements. Except for riders or endorsements by which the insurer effectuates a request made in writing by the insured under an individual long-term care insurance policy, all riders or endorsements added to an individual long-term care insurance policy after date of issue or at reinstatement or renewal which reduce or eliminate benefits or coverage in the policy shall require signed acceptance by the individual insured. After the date of policy issue, any rider or endorsement which increases benefits or cover-age with a concomitant increase in premium during the policy term must be agreed to in writing signed by the insured, except if the increased benefits or coverage are 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, rider or endorsement.

7.3 Payment of Benefits. A long-term care insurance policy which provides for the payment of benefits based on standards described as "usual and customary", "reasonable and customary", "reasonable and prevailing", or words of similar import shall include a definition of such terms and an explanation of such terms in its outline of coverage.

7.4 Limitations. If a long-term care 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 shall be labeled as "Preexisting Condition Limitations."

7.5 Other Limitations or Conditions on Eligibility for Benefits. A long-term care insurance policy or certificate containing any limitations or conditions for eligibility, except in accordance with 18 Del.C. §7105, shall set forth a description of such limitations or conditions, including any required number of days or confinement, in a separate paragraph of the policy or certificate and shall label such paragraph "Limitations or Conditions of Eligibility for Benefits."

7.6 Disclosure of Tax Consequences.

7.6.1 With regard to life insurance policies which provide an accelerated benefit for long-term care, a disclosure statement is required at the time of application for the policy or rider and at the time the accelerated benefit payment request is submitted that receipt of these accelerated benefits may be taxable, and that assistance should be sought from a personal tax advisor. The disclosure statement shall be prominently displayed on the first page of the policy or rider and any other related documents. This subsection shall not apply to qualified long-term care insurance contracts.

7.6.2 With regard to qualified long-term care insurance policies a disclosure statement shall appear in bold print on the face of the policy and outline of coverage indicating the policy is intended to be a qualified long-term care policy under Section 7702B(b) of the Internal Revenue Code of 1996.

7.7 Benefit Triggers. Activities of daily living and cognitive impairment shall be used to measure an insured’s need for long term care and shall be described in the policy or certificate in a separate paragraph and shall be labeled “Eligibility for the Payment of Benefits.” Any additional benefit triggers shall also be explained in this section. If these triggers differ for different benefits, explanation of the trigger shall accompany each benefit description. If an attending physician or other specified person must certify a certain level of functional dependency in order to be eligible for benefits, this too shall be specified.

8.1 This subsection shall apply as follows:

8.1.1 Except as provided in section 8.1.2, this section applies to any long-term care policy or certificate issued in this state on or after March 1, 2005.

8.1.2 For certificates issued on or after the effective date of this amended regulation under a group long-term care insurance policy as defined in 18 Del.C. §7103(4)a, which policy was in force at the time this amended regulation became effective, the provisions of this section shall apply on the policy anniversary following January 1, 2006.

8.2 Other than policies for which no applicable premium rate or rate schedule increases can be made, insurers shall provide all of the information listed in this subsection to the applicant at the time of application or enrollment, unless the method of application does not allow for delivery at that time. In such a case, an insurer shall provide all of the information listed in this section to the applicant no later than at the time of delivery of the policy or certificate.

8.2.1 A statement that the policy may be subject to rate increases in the future;

8.2.2 An explanation of potential future premium rate revisions, and the policyholder’s or certificate holder’s option in the event of a premium rate revision;

8.2.3 The premium rate or rate schedules applicable to the applicant that will be in effect until a request is made for an increase;

8.2.4 A general explanation for applying premium rate or rate schedule adjustments that shall include:

8.2.4.1 A description of when premium rate or rate schedule adjustments will be effective (e.g., next anniversary date, next billing date, etc.); and

8.2.4.2 The right to a revised premium rate or rate schedule as provided in section 8.2.3 if the premium rate or rate schedule is changed;

8.2.5 Premium rate increase information

8.2.5.1 Information regarding each pr0emium rate increase on this policy form or similar policy forms over the past ten (10) years for this state or any other state that, at a minimum, identifies:

8.2.5.1.1 The policy forms for which premium rates have been increased;

8.2.5.1.2 The calendar years when the form was available for purchase; and

8.2.5.1.3 The amount or percent of each increase. The percentage may be expressed as a percentage of the premium rate prior to the increase, and may also be expressed as minimum and maximum percentages if the rate increase is variable by rating characteristics.

8.2.5.2 The insurer may, in a fair manner, provide additional explanatory information related to the rate increases.

8.2.5.3 An insurer shall have the right to exclude from the disclosure premium rate increases that only apply to blocks of business acquired from other nonaffiliated insurers or the long-term care policies acquired from other nonaffiliated insurers when those increases occurred prior to the acquisition.

8.2.5.4 If an acquiring insurer files for a rate increase on a long-term care policy form acquired from nonaffiliated insurers or a block of policy forms acquired from nonaffiliated insurers on or before the later of the effective date of this section or the end of a twenty-four-month period following the acquisition of the block or policies, the acquiring insurer may exclude that rate increase from the disclosure. However, the nonaffiliated selling company shall include the disclosure of that rate increase in accordance with section 8.2.5.1.

8.2.5.5 If the acquiring insurer in section 8.2.5.4 above files for a subsequent rate increase, even within the twenty-four-month period, on the same policy form acquired from nonaffiliated insurers or block of policy forms acquired from nonaffiliated insurers referenced in section 8.2.5.4, the acquiring insurer shall make all disclosures required by section 8.2.5, including disclosure of the earlier rate increase referenced in section 8.2.5.4.

8.3 An applicant shall sign an acknowledgement at the time of application, unless the method of application does not allow for signature at that time, that the insurer made the disclosure required under sections 8.2.1 and 8.2.5. If due to the method of application the applicant cannot sign an acknowledgement at the time of application, the applicant shall sign no later than at the time of delivery of the policy or certificate.

8.4 An insurer shall use the forms in Appendices B and F to comply with the requirements of sections 8.2 and 8.3 of section 8.

8.5 An insurer shall provide notice of an upcoming premium rate schedule increase to all policyholders or certificate holders, if applicable, at least forty-five (45) days prior to the implementation of the premium rate schedule increase by the insurer. The notice shall include the information required by section 8.2 when the rate increase is implemented

9.1 Each insurer offering long-term care insurance shall, as a protection against unintentional lapse, comply with the following:

9.1.1 Notice before lapse or termination. No individual long-term care policy or certificate shall be issued until the insurer has received from the applicant either a written designation of at least one person, in addition to the applicant, who is to receive notice of lapse or termination of the policy or certificate for nonpayment of premium, or a written waiver dated and signed by the applicant electing not to designate additional persons to receive notice. The applicant has the right to designate at least one person who is to receive the notice of termination, in addition to the insured. Designation shall not constitute acceptance of any liability on the third party for services provided to the insured. The form used for the written designation must provide space clearly designated for listing at least one person. The designation shall include each person’s full name and home address. In the case of an applicant who elects not to designate an additional person, the waiver shall state: “Protection against unintended lapse. I understand that I have the right to designate at least one person other than myself to receive notice of lapse or termination of this long-term care insurance policy for nonpayment of premium. I understand that notice will not be given until thirty (30) days after a premium is due and unpaid. I elect NOT to designate a person to receive this notice.”

9.1.1.1 The insurer shall notify the insured of the right to change this written designation, no less often than once every two (2) years.

9.1.2 When the policyholder or certificate holder pays premium for a long-term care insurance policy or certificate through a payroll or pension deduction plan, the requirements contained in section 9.1.1.1 need not be met until sixty (60) days after the policyholder or certificate holder is no longer on such a payment plan. The application or enrollment form for such policies or certificates shall clearly indicate the payment plan selected by the applicant.

9.1.3 Lapse or termination for nonpayment of premium. No individual long-term care policy or certificate shall lapse or be terminated for nonpayment of premium unless the insurer, at least thirty (30) days before the effective date of the lapse or termination, has given notice to the insured and to those persons designated pursuant to section 9.1.1.1, at the address provided by the insured for purposes of receiving notice of lapse or termination. Notice shall be given by first class United States mail, postage prepaid; and notice may not be given until thirty (30) days after a premium is due and unpaid. Notice shall be deemed to have been given as of five (5) days after the date of mailing.

9.2 Reinstatement. In addition to the requirement in section 9.1.1, a long-term care insurance policy or certificate shall include a provision that provides for reinstatement of coverage, in the event of lapse if the insurer is provided proof that the policyholder or certificate holder was cognitively impaired or had a loss of functional capacity before the grace period contained in the policy expired. This option shall be available to the insured if requested within five (5) months after termination and shall allow for the collection of past due premium, where appropriate. The standard of proof of cognitive impairment or loss of functional capacity shall not be more stringent than the benefit eligibility criteria on cognitive impairment or the loss of functional capacity contained in the policy and certificate.

2 DE Reg. 2113 (5/1/99)

10.1 This section applies to any long-term care policy issued in this state on or after March 1, 2005.

10.2 An insurer shall provide the information listed in this subsection to the commissioner 30 days prior to making a long-term care insurance form available for sale.

10.21.1 A copy of the disclosure documents required in Section 8; and

10.21.2 An actuarial certification consisting of at least the following:

10.21.2.1 A statement that the initial premium rate schedule is sufficient to cover anticipated costs under moderately adverse experience and that the premium rate schedule is reasonably expected to be sustainable over the life of the form with no future premium increases anticipated;

10.21.2.2 A statement that the policy design and coverage provided have been reviewed and taken into consideration;

10.21.2.3 A statement that the underwriting and claims adjudication processes have been reviewed and taken into consideration;

10.21.2.4 A complete description of the basis for contract reserves that are anticipated to be held under the form, to include:

10.21.2.4.1 Sufficient detail or sample calculations provided so as to have a complete depiction of the reserve amounts to be held;

10.21.2.4.2 A statement that the assumptions used for reserves contain reasonable margins for adverse experience;

10.21.2.4.3 A statement that the net valuation premium for renewal years does not increase (except for attained-age rating where permitted); and

10.21.2.4.4 A statement that the difference between the gross premium and the net valuation premium for renewal years is sufficient to cover expected renewal expenses; or if such a statement cannot be made, a complete description of the situations where this does not occur;

10.21.2.4.4.1 An aggregate distribution of anticipated issues may be used as long as the underlying gross premiums maintain a reasonably consistent relationship;

10.21.2.4.4.2 If the gross premiums for certain age groups appear to be inconsistent with this requirement, the commissioner may request a demonstration under section10.3 based on a standard age distribution; and

10.21.2.4.5 Premium schedules.

10.21.2.4.5.1 A statement that the premium rate schedule is not less than the premium rate schedule for existing similar policy forms also available from the insurer except for reasonable differences attributable to benefits; or

10.21.2.4.5.2 A comparison of the premium schedules for similar policy forms that are currently available from the insurer with an explanation of the differences.

10.32 Actuarial information.

10.32.1 The commissioner may request an actuarial demonstration that benefits are reasonable in relation to premiums. The actuarial demonstration shall include either premium and claim experience on similar policy forms, adjusted for any premium or benefit differences, relevant and credible data from other studies, or both.

10.32.2 In the event the commissioner asks for additional information under this provision, the period in section 10.2 does not include the period during which the insurer is preparing the requested information.

11.1 All applications for long-term care insurance policies or certificates except those which are guaranteed issue shall contain clear and unambiguous questions designed to ascertain the health condition of the applicant.

11.2 If an application for long-term care insurance contains a question which asks whether the applicant has had medication prescribed by a physician, it must also ask the applicant to list the medication that has been prescribed.

11.2.1 If the medications listed in such application were known by the insurer, or should have been known at the time of application, to be directly related to a medical condition for which coverage would otherwise be denied, then the policy or certificate shall not be rescinded for that condition.

11.3 Except for policies or certificates which are guaranteed issue:

11.3.1 The following language shall be set out conspicuously and in close conjunction with the applicant's signature block on an application for a long-term care insurance policy or certificate: Caution: If your answers on this application are incorrect or untrue [company] has the right to deny benefits or rescind your policy.

11.3.2 The following language, or language substantially similar to the following, shall be set out conspicuously on the long-term care insurance policy or certificate at the time of delivery: Caution: The issuance of this long-term care insurance [policy] [certificate] is based upon your responses to the questions on your application. A copy of your [application] [enrollment form] [is enclosed] [was retained by you when you applied]. If your answers are incorrect or untrue, the company has the right to deny benefits or rescind your policy. The best time to clear up any questions is now, before a claim arises! If, for any reason, any of your answers are incorrect, contact the company at this address: [insert address].

11.3.3 Prior to issuance of a long-term care insurance policy or certificate to an applicant age eighty (80) or older, the insurer shall obtain one of the following:

11.3.3.1 A report of a physical examination,

11.3.3.2 An assessment of functional capacity,

11.3.3.3 An attending physician's statement, or

11.3.3.4 Copies of medical records.

11.4 A copy of the completed application or enrollment form (whichever is applicable) shall be delivered to the insured no later than at the time of delivery of the policy or certificate unless it was retained by the applicant at the time of application.

11.5 Every insurer or other entity selling or issuing long-term care insurance benefits shall maintain a record of all policy or certificate rescissions, both state and countrywide, except those which the insured voluntarily effectuated and shall annually furnish this information to the Insurance Commissioner in the form prescribed by the National Association of Insurance Commissioners.

11.6 For a policy or certificate that has been in force for less than six months, an insurer may rescind a long term care insurance policy or certificate or deny an otherwise valid long term care insurance claim upon a showing of a misrepresentation that is material to the acceptance for coverage.

11.7 For a policy or certificate that has been in force for at least six months but less than two years, an insurer may rescind a long term care insurance policy or certificate or deny an otherwise valid long term care insurance claim upon a showing of a misrepresentation that is material to the acceptance for coverage and also pertains to the condition for which benefits are sought.

11.8 After a policy or certificate has been in force for two years, the policy or certificate is not contestable upon the ground of misrepresentation alone. The policy or certificate may be contested only upon a showing that the insured knowingly and intentionally misrepresented relevant facts relating to the insured's health.

11.9 A long term care insurance policy or certificate may be field issued if the compensation to the field issuer is not based on the number of policies or certificates issued. A policy or certificate is field issued for the purposes of this subsection if the policy or certificate is issued by an insurance producer or a third party administrator pursuant to underwriting authority granted to the insurance producer or third party administrator by an insurer and using the insurer's underwriting guidelines.

11.10 If an insurer has paid benefits under the long term care insurance policy or certificate, the insurer may not recover the benefit payments in the event that the policy or certificate is rescinded.

11.11 This section does not apply to the remaining death benefit of a life insurance policy in the event of the death of the insured if the policy accelerates benefits for long term care. In this situation, the remaining death benefits under the life insurance policy are governed by 18 Del.C. §2929. In all other situations, this section shall apply to life insurance policies that accelerate benefits for long-term care.

12.1 A long-term care insurance policy or certificate shall not, if it provides benefits for home health or community care services, limit or exclude benefits;

12.1.1 By requiring that the insured/claimant would need skilled care in a skilled nursing facility if home health care services were not provided.

12.1.2 By requiring that the insured/claimant first or simultaneously receive nursing and/or therapeutic services in a home, community or institutional setting before home health care services are covered.

12.1.3 By limiting eligible services to services provided by registered nurses or licensed practical nurses.

12.1.4 By requiring that a nurse or therapist provide services covered by the policy that can be provided by a home health aide, or other licensed or certified home care worker acting within the scope of his or her licensure or certification.

12.1.5 By excluding coverage for personal care services provided by a home health aide;

12.1.6 By requiring that the provision of home health care services be at a level of certification or licensure greater than that required by the eligible service;

12.1.7 By requiring that the insured/claimant have an acute condition before home health care services are covered.

12.1.8 By limiting benefits to services provided by Medicare-certified agencies or providers;

12.1.9 By excluding coverage for adult day care services.

12.2 A long-term care insurance policy or certificate, if it provides for home health or community care services, shall provide total home health or community care coverage that is a dollar amount equivalent to at least one-half of one year's coverage available for nursing home benefits under the policy or certificate. This requirement shall not apply to policies or certificates issued to residents of continuing care retirement communities.

12.3 Home health care coverage may be applied to non-home health care benefits provided in the policy or certificate when determining the maximum coverage under the terms of the policy or certificate.

13.1 No insurer may offer a long-term care insurance policy unless the insurer also offers to the policyholder the option to purchase a policy that provides for benefit levels to increase with benefit maximums or reasonable durations which are meaningful to account for reasonably anticipated increases in the costs of long-term services covered by the policy. Insurers must offer to each policyholder, at the time of purchase, the option to purchase a policy with an inflation protection feature no less favorable than one of the following:

13.1.1 Increases benefit levels annually in a manner so that the increases are compounded annually at a rate not less than five percent (5%). However, if the insured individual shall reject the inflation protection offer as provided for in this section, the insurer may offer other or alternate forms of inflation protection;

13.1.2 Guarantees the insured individual the right to periodically increase benefit levels without providing evidence of insurability or health status so long as the option for the previous period has not been declined. The amount of additional benefit shall be no less than the difference between the existing policy benefit and that benefit compounded annually at a rate of at least five percent (5%) for the period beginning with the purchase of the existing benefit and extended until the year in which the offer is made; or

13.1.3 Covers a specific percentage of actual or reasonable charges and does not include a maximum specified indemnity amount of limit.

13.2 Where the policy is issued to a group, the required offer in section 13.1 above shall be made to the group policyholder; except, if the policy is issued to a group defined in 18 Del.C. §7103(4), other than to a continuing care retirement community, the offering shall be made to each proposed certificate holder.

13.3 The offer in section 13.1 above shall not be required of life insurance policies or riders containing accelerated long-term care benefits.

13.4 Insurers shall include the following information in or with the outline of coverage:

13.4.1 A graphic comparison of the benefit levels of a policy that increases benefits over the policy period with a policy that does not increase benefits. The graphic comparison shall show benefit levels over at least a twenty (20) year period.

13.4.2 Any expected premium increases or additional premiums to pay for automatic or optional benefit increases. An insurer may use a reasonable hypothetical, or a graphic demonstration, for the purposes of this disclosure.

13.5 Inflation protection benefit increases under a policy which contains such benefits shall continue without regard to an insured's age, claim status or claim history, or the length of time the person has been insured under the policy.

13.6 An offer of inflation protection which provides for automatic benefit increases shall include an offer of a premium which the insurer expects to remain constant. Such offer shall disclose in a conspicuous manner that the premium may change in the future unless the premium is guaranteed to remain constant.

13.7 Inflation protection as provided in section 13.1.1 of this section shall be included in a long-term care insurance policy unless an insurer obtains a rejection of inflation protection signed by the policyholder as required in this subsection.

13.7.1 Inflation protection as provided in section 13.1.1 of this section shall be included in a long-term care insurance policy unless an insurer obtains a rejection of inflation protection signed by the policyholder as required in this subsection.

13.7.2 The rejection shall be considered part of the application and shall state:

I have reviewed the outline of coverage and the graphs that compare the benefits and premiums of this policy with and without inflation protection. Specifically, I have reviewed Plans __________ and I reject inflation protection.

14.1 Application forms shall include the following questions designed to elicit information as to whether, as of the date of the application, the applicant has another long-term care insurance policy or certificate in force or whether a long-term care policy or certificate is intended to replace any accident and sickness or long-term care policy or certificate presently in force. A supplementary application or other form to be signed by the applicant and the agent, except where the coverage is sold without an agent, containing such questions may be used. With regard to a replacement policy issued to a group defined in 18 Del.C. §7103(4), the following questions may be modified only to the extent necessary to elicit information about health or long-term care insurance policies other than the group policy being replaced; provided, however, that the certificate holder has been notified of the replacement.

14.1.1 Do you have another long-term care insurance policy or certificate in force (including health care services contract, health maintenance organization contract)?

14.1.2 Did you have another long-term care insurance policy or certificate in force during the last twelve (12) months?

14.1.2.1 If so, with which company?

14.1.2.2 If that policy lapsed, when did it lapse?

14.1.3 Are you covered by Medicaid?

14.1.4 Do you intend to replace any of your medical or health insurance with this policy {certificate}?

14.2 Agents shall list any other health insurance policies they have sold to the applicant.

14.2.1 List policies sold which are still in force.

14.2.2 List policies sold in the last five (5) years which are no longer in force.

14.3 Solicitations Other than Direct Response. Upon determining that a sale will involve replacement, an insurer; other than an insurer using direct response solicitation methods, or its agent; shall furnish the applicant, prior to issuance or delivery of the individual long-term care insurance policy, a notice regarding replacement of accident and sickness or long-term care coverage. One copy of such notice shall be retained by the applicant and an additional copy signed by the applicant shall be retained by the insurer. The required notice shall be provided in the following manner:

NOTICE TO APPLICANT REGARDING REPLACEMENT OF INDIVIDUAL

ACCIDENT AND SICKNESS OR LONG-TERM CARE INSURANCE

According to [your application] [information you have furnished], you intend to lapse or otherwise terminate existing accident and sickness or long-term care insurance and replace it with an individual long term care insurance policy to be issued by [company name] Insurance Company. Your new policy provides thirty (30) days within which you may decide, without cost, whether you desire to keep the policy. For your own information and protection, you should be aware of and seriously consider certain factors which may affect the insurance protection available to you under the new policy.

You should review this new coverage carefully, comparing it with all accident and sickness or long-term care insurance coverage you now have, and terminate your present policy only if, after due consideration, you find that purchase of this long-term care insurance is a wise decision.

STATEMENT TO APPLICANT BY AGENT

[BROKER OR OTHER REPRESENTATIVE]:

(Use additional sheets, as necessary).

I have reviewed your current medical or health insurance coverage. I believe the replacement of insurance involved in this transaction materially improves your position. My conclusion has taken into account the following considerations, which I call to your attention:

1. Health conditions which you may presently have (preexisting conditions), may not be immediately or fully covered under the new policy. This could result in denial or delay in payment of benefits under the new policy, whereas a similar claim might have been payable under your present policy.

2. State law provides that your replacement policy or certificate may not contain new pre-existing conditions or probationary periods.

3. If you are replacing existing long-term care insurance coverage, you may wish to secure the advice of your present insurer or its agent regarding the proposed replacement of your present policy. This is not only your right, but it is also in your best interest to make sure you understand all the relevant factors involved in replacing your present coverage.

4. If, after due consideration, you still wish to terminate your present policy and replace it with new coverage, be certain to truthfully and completely answer all questions on the application concerning your medical health history. Failure to include all material medical information on an application may provide a basis for the company to deny and future claims and to refund your premium as though your policy had never been in force. After the application has been completed and before you sign it, reread it carefully to be certain that all information has been properly recorded.

_______________________________

(Date)

_______________________________

(Agent's Signature)

The above "Notice to the Applicant" was delivered to me on:

________________________________

(Date)

_________________________

(Applicant's Signature)

14.4 Direct Response Solicitations. Insurers using direct response solicitation methods shall deliver a notice regarding replacement of accident and sickness or long-term care coverage to the applicant upon issuance of the policy. The required notice shall be provided in the following manner:

NOTICE TO APPLICANT REGARDING REPLACEMENT OF INDIVIDUAL

ACCIDENT AND SICKNESS OR LONG-TERM CARE INSURANCE

According to [your application] [information you have furnished], you intend to lapse or otherwise terminate existing accident and sickness or long-term care insurance and replace it with the long-term care insurance policy delivered herewith issued by [company name] Insurance Company. Your new policy provides thirty (30) days within which you may decide, without cost, whether you desire to keep the policy. For your own information and protection, you should be aware of and seriously consider certain factors which may affect the insurance protection available to you under the new policy.

You should review this new coverage carefully, comparing it with all accident and sickness or long-term care insurance coverage you now have, and terminate your present policy only if, after due consideration, you find that purchase of this long-term care coverage is a wise decision.

1. Health conditions which you may presently have (preexisting conditions), may not be immediately or fully covered under the new policy. This could result in denial or delay in payment of benefits under the new policy, whereas a similar claim might have been payable under your present policy.

2. State law provides that your replacement policy or certificate may not contain new pre-existing conditions or probationary periods.

3. If you are replacing existing long-term care insurance coverage, you may wish to secure the advice of your present insurer or its agent regarding the proposed replacement of your present policy. This is not only your right, but it is also in your best interest to make sure you understand all the relevant factors involved in replacing your present coverage.

4. [To be included only if the application is attached to the policy.] If, after due consideration, you still wish to terminate your present policy and replace it with new coverage, read the copy of the application attached to your new policy and be sure that all questions are answered fully and correctly. Omissions or misstatements in the application could cause an otherwise valid claim to be denied. Carefully check the application and write to [company name and address] within (30) thirty days if any information is not correct and complete, or if any past medical history has been left out of the application.

__________________________

(Company Name)

14.5 Where replacement is intended, the replacing insurer shall notify, in writing, the existing insurer of the proposed replacement. The existing policy shall be identified by the name of the insurer, name of the insured and policy number or address including zip code. Such notice shall be made within five (5) working days from the date the application is received by the insurer or the date the policy is issued, whichever is sooner.

14.6 Life Insurance policies that accelerate benefits for long-term care shall comply with this section if the policy being replaced is a long-term care insurance policy. If the policy being replaced is a life insurance policy, the insurer shall comply with the replacement requirements of Regulation 1204. If a life insurance policy that accelerates benefits for long-term care is replaced by another such policy, the replacing insurer shall comply with both the long-term care and the life insurance replacement requirements.

15.1 Every insurer shall maintain records for each Delaware-licensed agent of that agent's amount of replacement sales as a percentage of the agent's total annual sales and the amount of lapses of long-term care insurance policies sold by the agent as a percent of the agent's total annual sales.

15.2 Each insurer shall report annually by June 30 the ten percent (10%) of its Delaware-licensed agents with the greatest percentages of lapses and replacements as measured by section 15.1 above.

15.3 Reported replacement and lapse rates do not alone constitute a violation of insurance laws or necessarily imply wrongdoing. The reports are for the purpose of reviewing more closely agent activities regarding the sale of long-term care insurance.

15.4 Every entity providing long-term care insurance in this state shall file annually as an attachment to its annual statement an exhibit that discloses the total number of long-term care insurance policies, by form number, in force in this state and the total number of policies, by form number, that have lapsed over the previous five years. Companies must provide in-force policy and lapsed policy information in the following manner:

15.5 Every insurer shall report, annually by June 30 the number of replacement policies sold as a percentage of its total annual sales and as a percentage of its total number of policies in force as of the preceding calendar year.

15.6 For purposes of this section, "policy" shall mean only long-term care insurance and "report" shall mean on a statewide basis.

16.1 No agent producer is authorized to market, sell, solicit or otherwise contact any person for the purpose of marketing long-term care insurance unless the agent producer has demonstrated his or her knowledge of long-term care insurance and the appropriateness of such insurance by passing a test required by this state and maintaining appropriate licenses.

16.2 Agents producers shall comply with the licensing provisions contained in 18 Del.C. Ch. 17 and Delaware Insurance Department Regulation 504, as the same may be amended or supplemented relating to lines of authority and examinations, respectively.

17.1 The Commissioner may, upon written request and after an administrative hearing, issue an order to modify or suspend a specific provision or provisions of this regulation with respect to a specific long-term care insurance policy or certificate upon a written finding that:

17.1.1 The modification or suspension would be in the best interest of the insureds; and

17.1.2 The purposes to be achieved could not be effectively or efficiently achieved without the modification or suspension; and

17.32 17.3.1 The modification or suspension is necessary to the development of an innovative and reasonable approach for insuring long-term care; or

17.3.2 The policy or certificate is to be issued to residents of a life care or continuing care retirement community or some other residential community for the elderly and the modification or suspension is reasonable related to the special needs or nature of such a community; or

17.3.34 The modification or suspension is necessary to permit long-term care insurance to be sold as part of, or in conjunction with, another insurance product.

18.1 When long-term care benefits are provided through the acceleration of benefits under group or individual life policies or riders to such policies, policy reserves for such benefits shall be determined in accordance with 18 Del.C. §1113. Claim reserves must also be established in the case when such policy or rider is in claim status. Reserves for policies and riders subject to this subsection should be based on the multiple decrement model utilizing all relevant decrements except for voluntary termination rates. Single decrement approximations are acceptable if the calculation produces essentially similar reserves, if the reserve is clearly more conservative, or if the reserve is immaterial. The calculations may take into account the reduction in life insurance benefits due to the payment of long-term care benefits. However, in no event shall the reserves for the long-term care benefit and the life insurance benefit be less than the reserves for the life insurance benefit assuming no long-term benefit. In the development and calculation of reserves for policies and riders subject to this subsection, due regard shall be given to the applicable policy provisions, marketing methods, administrative procedures and all other considerations which have an impact on projected claim costs, including, but not limited to, the following:

18.2 Any applicable valuation morbidity table shall be certified as appropriate as a statutory valuation table by a member of the American Academy of Actuaries.

18.23 When long-term care benefits are provided other than as in section 18.1 above, reserves shall be determined in accordance with 18 Del.C. §1108.

19.1 This section shall apply to all long-term care insurance policies or certificates except those covered under Sections 10 and 20.

19.2 Benefits under long-term care insurance policies shall be deemed reasonable in relation to premiums provided the expected loss ratio is at least sixty percent (60%) for individual policies and at least sixty-five percent (65%) for group policies, calculated in a manner which provides for adequate reserving of the long-term care insurance risk. In evaluating the expected loss ratio, due consideration shall be given to all relevant factors, including:

19.2.1 Statistical credibility of incurred claims experience and earned premiums;

19.2.2 The period for which rates are computed to provide coverage;

19.2.3 Experienced and projected trends;

19.2.4 Concentration of experience within early policy duration;

19.2.5 Expected claim fluctuation;

19.2.6 Experience refunds, adjustments or dividends;

19.2.7 Renewability features;

19.2.8 All appropriate expense factors;

19.2.9 Interest;

19.2.10 Experimental nature of the coverage;

19.2.11 Policy reserves;

19.2.12 Mix of business by risk classification; and

19.2.13 Product features such as long elimination periods, high deductibles and high maximum limits.

19.3 Section 19.2 shall not apply to life insurance policies that accelerate benefits for long-term care. A life insurance policy that funds long-term care benefits entirely by accelerating the death benefit is considered to provide reasonable benefits in relation to premiums paid, if the policy complies with all of the following provisions:

19.3.1 The interest credited internally to determine cash value accumulations, including long-term care, if any, are guaranteed not to be less than the minimum guaranteed interest rate for cash value accumulations without long-term care set forth in the policy;

19.3.2 The portion of the policy that provides life insurance benefits meets the nonforfeiture requirements of 18 Del.C. §2929;

19.3.3 The policy meets the disclosure requirements of 18 Del.C. §7105;

19.3.4 Any policy illustration that meets the applicable requirements of the Delaware Insurance Department Regulation 1210; and

19.3.5 An actuarial memorandum is filed with the insurance department that includes:

19.3.5.1 A description of the basis on which the long-term care rates were determined;

19.3.5.2 A description of the basis for the reserves;

19.3.5.3 A summary of the type of policy, benefits, renewability, general marketing method, and limits on ages of issuance;

19.3.5.4 A description and a table of each actuarial assumption used. For expenses, an insurer must include percent of premium dollars per policy and dollars per unit of benefits, if any;

19.3.5.5 A description and a table of the anticipated policy reserves and additional reserves to be held in each future year for active lives;

19.3.5.6 The estimated average annual premium per policy and the average issue age;

19.3.5.7 A statement as to whether underwriting is performed at the time of application. The statement shall indicate whether underwriting is used and, if used, the statement shall include a description of the type or types of underwriting used, such as medical underwriting or functional assessment underwriting. Concerning a group policy, the statement shall indicate whether the enrollee or any dependent will be underwritten and when underwriting occurs; and

19.3.5.8 A description of the effect of the long-term care policy provision on the required premiums, nonforfeiture values and reserves on the underlying life insurance policy, both for active lives and those in long-term care claim status.

20.1 This section shall apply as follows:

20.1.1 Except as provided in section 20.1.2, this section applies to any long-term care policy or certificate issued in this state on or after September 1, 2005.

20.1.2 For certificates issued on or after the effective date of this amended regulation May 1, 1999 under a group long-term care insurance policy as defined in Section 18 Del.C. §7103(4), which policy was in force at the time this amended regulation became effective, the provisions of this section shall apply on the policy anniversary following January 1, 2006.

20.2 An insurer shall provide notice of a pending premium rate schedule increase, including an exceptional increase, to the commissioner at least 30 days prior to the notice to the policyholders and shall include:

20.2.1 Information required by section 8;

20.2.2 Certification by a qualified actuary that:

20.2.2.1 If the requested premium rate schedule increase is implemented and the underlying assumptions, which reflect moderately adverse conditions, are realized, no further premium rate schedule increases are anticipated;

20.2.2.2 The premium rate filing is in compliance with the provisions of this section;

20.2.3 An actuarial memorandum justifying the rate schedule change request that includes:

20.2.3.1 Lifetime projections of earned premiums and incurred claims based on the filed premium rate schedule increase; and the method and assumptions used in determining the projected values, including reflection of any assumptions that deviate from those used for pricing other forms currently available for sale;

20.2.3.1.1 Annual values for the five (5) years preceding and the three (3) years following the valuation date shall be provided separately;

20.2.3.1.2 The projections shall include the development of the lifetime loss ratio, unless the rate increase is an exceptional increase;

20.2.3.1.3 The projections shall demonstrate compliance with section 20.3; and

20.2.3.1.4 For exceptional increases,

20.2.3.1.4.1 The projected experience should be limited to the increases in claims expenses attributable to the approved reasons for the exceptional increase; and

20.2.3.1.4.2 In the event the commissioner determines as provided in section 4.1.4 that offsets may exist, the insurer shall use appropriate net projected experience;

20.2.3.2 Disclosure of how reserves have been incorporated in this rate increase whenever the rate increase will trigger contingent benefit upon lapse;

20.2.3.3 Disclosure of the analysis performed to determine why a rate adjustment is necessary, which pricing assumptions were not realized and why, and what other actions taken by the company have been relied on by the actuary;

20.2.3.4 A statement that policy design, underwriting and claims adjudication practices have been taken into consideration; and

20.2.3.5 In the event that it is necessary to maintain consistent premium rates for new certificates and certificates receiving a rate increase, the insurer will need to file composite rates reflecting projections of new certificates;

20.2.4 A statement that renewal premium rate schedules are not greater than new business premium rate schedules except for differences attributable to benefits, unless sufficient justification is provided to the commissioner; and

20.2.5 Sufficient information for review of the premium rate schedule increase by the commissioner.

20.3 All premium rate schedule increases shall be determined in accordance with the following requirements:

20.3.1 Exceptional increases shall provide that seventy percent (70%) of the present value of projected additional premiums from the exceptional increase will be returned to policyholders in benefits;

20.3.2 Premium rate schedule increases shall be calculated such that the sum of the accumulated value of incurred claims, without the inclusion of active life reserves, and the present value of future projected incurred claims, without the inclusion of active life reserves, will not be less than the sum of the following:

20.3.2.1 The accumulated value of the initial earned premium times fifty-eight percent (58%);

20.3.2.2 Eighty-five percent (85%) of the accumulated value of prior premium rate schedule increases on an earned basis;

20.3.2.3 The present value of future projected initial earned premiums times fifty-eight percent (58%); and

20.3.2.4 Eighty-five percent (85%) of the present value of future projected premiums not in section 20.3.2.3 on an earned basis;

20.3.3 In the event that a policy form has both exceptional and other increases, the values in section 20.3.2.2 and 20.3.2.4 will also include seventy percent (70%) for exceptional rate increase amounts; and

20.3.4 All present and accumulated values used to determine rate increases shall use the maximum valuation interest rate for contract reserves as specified by applicable Delaware law or regulation. The actuary shall disclose as part of the actuarial memorandum the use of any appropriate averages.

20.4 For each rate increase that is implemented, the insurer shall file for review by the commissioner updated projections, as defined in section 20.2.3.1, annually for the next three (3) years and include a comparison of actual results to projected values. The commissioner may extend the period to greater than three (3) years if actual results are not consistent with projected values from prior projections. For group insurance policies that meet the conditions in section 20.11, the projections required by this subsection shall be provided to the policyholder in lieu of filing with the commissioner.

20.5 If any premium rate in the revised premium rate schedule is greater than 200 percent of the comparable rate in the initial premium schedule, lifetime projections, as defined in section 20.2.3.1, shall be filed for review [approval] by the commissioner every five (5) years following the end of the required period in section 20.4. For group insurance policies that meet the conditions in section 20.11, the projections required by this subsection shall be provided to the policyholder in lieu of filing with the commissioner.

20.6 Actual v. projected experience.

20.6.1 If the commissioner has determined that the actual experience following a rate increase does not adequately match the projected experience and that the current projections under moderately adverse conditions demonstrate that incurred claims will not exceed proportions of premiums specified in section 20.3, the commissioner may require the insurer to implement any of the following:

20.6.1.1 Premium rate schedule adjustments; or

20.6.1.2 Other measures to reduce the difference between the projected and actual experience.

20.6.2 In determining whether the actual experience adequately matches the projected experience, consideration should be given to section 20.2.3.5, if applicable.

20.7 If the majority of the policies or certificates to which the increase is applicable are eligible for the contingent benefit upon lapse, the insurer shall file:

20.7.1 A plan, subject to commissioner approval, for improved administration or claims processing designed to eliminate the potential for further deterioration of the policy form requiring further premium rate schedule increases, or both, or to demonstrate that appropriate administration and claims processing have been implemented or are in effect; otherwise the commissioner may impose the condition in section 20.8; and

20.7.2 The original anticipated lifetime loss ratio, and the premium rate schedule increase that would have been calculated according to section 20.3 had the greater of the original anticipated lifetime loss ratio or fifty-eight percent (58%) been used in the calculations described in section 20.3.2.1 and 20.3.2.3.

20.8 Lapse rate review.

20.8.1 For a rate increase filing that meets the following criteria, the commissioner shall review, for all policies included in the filing, the projected lapse rates and past lapse rates during the twelve (12) months following each increase to determine if significant adverse lapsation has occurred or is anticipated:

20.8.1.1 The rate increase is not the first rate increase requested for the specific policy form or forms;

20.8.1.2 The rate increase is not an exceptional increase; and

20.8.1.3 The majority of the policies or certificates to which the increase is applicable are eligible for the contingent benefit upon lapse.

20.8.2 In the event significant adverse lapsation has occurred, is anticipated in the filing or is evidenced in the actual results as presented in the updated projections provided by the insurer following the requested rate increase, the commissioner may determine that a rate spiral exists. Following the determination that a rate spiral exists, the commissioner may require the insurer to offer, without underwriting, to all in force insureds subject to the rate increase the option to replace existing coverage with one or more reasonably comparable products being offered by the insurer or its affiliates.

20.8.2.1 The offer shall:

20.8.2.1.1 Be subject to the approval of the commissioner;

20.8.2.1.2 Be based on actuarially sound principles, but not be based on attained age; and

20.8.2.1.3 Provide that maximum benefits under any new policy accepted by an insured shall be reduced by comparable benefits already paid under the existing policy.

20.8.2.2 The insurer shall maintain the experience of all the replacement insureds separate from the experience of insureds originally issued the policy forms. In the event of a request for a rate increase on the policy form, the rate increase shall be limited to the lesser of:

20.8.2.2.1 The maximum rate increase determined based on the combined experience; and

20.8.2.2.2 The maximum rate increase determined based only on the experience of the insureds originally issued the form plus ten percent (10%).

20.9 If the commissioner determines that the insurer has exhibited a persistent practice of filing inadequate initial premium rates for long-term care insurance, the commissioner may, in addition to the provisions of section 20.8 of this section, prohibit the insurer from either of the following:

20.9.1 Filing and marketing comparable coverage for a period of up to five (5) years; or

20.9.2 Offering all other similar coverages and limiting marketing of new applications to the products subject to recent premium rate schedule increases.

20.10 Sections 20.1 through 20.9 shall not apply to policies for which the long-term care benefits provided by the policy are incidental, as defined in section 4.2, if the policy complies with all of the following provisions:

20.10.1 The interest credited internally to determine cash value accumulations, including long-term care, if any, are guaranteed not to be less than the minimum guaranteed interest rate for cash value accumulations without long-term care set forth in the policy;

20.10.2 The portion of the policy that provides insurance benefits other than long-term care coverage meets the nonforfeiture requirements as set forth by law or regulation including but not limited to the following:

20.10.2.1 18 Del.C. §2929; and

20.10.2.2 Delaware Insurance Department Regulation 1201;

20.10.3 The policy meets the disclosure requirements of 18 Del.C. §§ 7105 and 7106;

20.10.4 The portion of the policy that provides insurance benefits other than long-term care coverage meets the requirements as set forth by law or regulation including but not limited to the following:

20.10.4.1 Policy illustrations as required by Delaware Insurance Department Regulation 1210; and

20.10.4.2 Disclosure requirements in Delaware Insurance Department Regulation 1201.

20.10.5 An actuarial memorandum is filed with the insurance department that includes:

20.10.5.1 A description of the basis on which the long-term care rates were determined;

20.10.5.2 A description of the basis for the reserves;

20.10.5.3 A summary of the type of policy, benefits, renewability, general marketing method, and limits on ages of issuance;

20.10.5.4 A description and a table of each actuarial assumption used. For expenses, an insurer must include percent of premium dollars per policy and dollars per unit of benefits, if any;

20.10.5.5 A description and a table of the anticipated policy reserves and additional reserves to be held in each future year for active lives;

20.10.5.6 The estimated average annual premium per policy and the average issue age;

20.10.5.7 A statement as to whether underwriting is performed at the time of application. The statement shall indicate whether underwriting is used and, if used, the statement shall include a description of the type or types of underwriting used, such as medical underwriting or functional assessment underwriting. Concerning a group policy, the statement shall indicate whether the enrollee or any dependent will be underwritten and when underwriting occurs; and

20.10.5.8 A description of the effect of the long-term care policy provision on the required premiums, nonforfeiture values and reserves on the underlying insurance policy, both for active lives and those in long-term care claim status.

20.11 Sections 20.6 and 20.8 shall not apply to group insurance policies as defined in 18 Del.C. § 7103(4) where:

20.11.1 The policies insure 250 or more persons and the policyholder has 5,000 or more eligible employees of a single employer; or

20.11.2 The policyholder, and not the certificateholders, pays a material portion of the premium, which shall not be less than twenty percent (20%) of the total premium for the group in the calendar year prior to the year a rate increase is filed.

Prior to an insurer or similar organization offering group long-term care insurance to a resident of this state pursuant to 18 Del.C. §7104 it shall file with the Commissioner evidence that the group policy or certificate thereunder has been approved by a state having statutory or regulatory long-term care insurance requirements substantially similar to those adopted in this state.

22.1 This section of the regulation implements, interprets and makes specific, the provisions of 18 Del.C. Section 7105, in prescribing a standard format and the content of an outline of coverage.

22.12 The outline of coverage shall be a free-standing document, using no smaller than ten point type.

22.23 The outline of coverage shall contain no material of an advertising nature.

22.34 Text which is capitalized or underscored in the standard format outline of coverage may be emphasized by other means which provide prominence equivalent to such capitalization or underscoring.

22.45 Use of the text and sequence of text of the standard format outline of coverage is mandatory, unless otherwise specifically indicated.

22.56 Format for outline of coverage:

[COMPANY NAME]

[ADDRESS - CITY & STATE]

[TELEPHONE NUMBER]

LONG-TERM CARE INSURANCE

OUTLINE OF COVERAGE

[Policy Number or Group Master Policy and Certificate Number]

[Except for polices or certificates which are guaranteed issue, the following caution statement, or language substantially similar, must appear as follows in the outline of coverage.]

Caution: The issuance of this long-term care insurance [policy] [certificate] is based upon your responses to the questions on your application. A copy of your [application] [enrollment form] [is enclosed] [was retained by you when your applied]. If your answers are incorrect or untrue, the company has the right to deny benefits or rescind your policy. The best time to clear up any questions is now, before a claim arises! If, for any reason, any of your answers are incorrect, contact the company at this address: [insert address].

1. This policy is [an individual policy of insurance] ([a group policy] which was issued in the [indicate jurisdiction in which group policy was issued]).

2. Purpose Of Outline Of Coverage. This outline of coverage provides a very brief description of the important features of the policy. You should compare this outline of coverage to outlines of coverage for other policies available to you. This is not an insurance contract, but only a summary of coverage. Only the individual or group policy contains governing contractual provisions. This means that the policy or group policy sets forth in detail the rights and obligations of both you and the insurance company. Therefore, if you purchase this coverage, or any other coverage, it is important that you READ YOUR POLICY (OR CERTIFICATE) CAREFULLY!

3. FEDERAL TAX CONSEQUENCES.

This [POLICY] [CERTIFICATE] is intended to be a federally tax-qualified long-term care insurance contract under Section 7702B(b) of the Internal Revenue Code of 1986, as amended.

OR

Federal Tax Implications of this [POLICY] [CERTIFICATE]. This [POLICY] [CERTIFICATE] is not intended to be a federally tax-qualified long-term care insurance contract under Section 7702B(b) of the Internal Revenue Code of 1986 as amended. Benefits received under the [POLICY] [CERTIFICATE] may be taxable as income.

4. Terms Under Which the Policy OR Certificate May Be Continued in Force or Discontinued.

(a) [For long-term care health insurance policies or certificates describe one of the following permissible policy renewability provisions:

(1) Policies and certificates that are guaranteed renewable shall contain the following statement:] RENEWABILITY: THIS POLICY [CERTIFICATE] IS GUARANTEED RENEWABLE. This means you have the right, subject to the terms of your policy, [certificate] to continue this policy as long as you pay your premiums on time. [Company Name] cannot change any of the terms of your policy on its own, except that, in the future, IT MAY INCREASE THE PREMIUM YOU PAY.

(2) [Policies and certificates that are noncancellable shall contain the following statement:] RENEWABILITY: THIS POLICY [CERTIFICATE] IS NONCANCELLABLE. This means that you have the right, subject to the terms of your policy, to continue this policy as long as you pay your premiums on time. [Company Name] cannot change any of the terms of your policy on its own and cannot change the premium you currently pay. However, if your policy contains an inflation protection feature where you choose to increase your benefits, [Company Name] may increase your premium at that time for those additional benefits.

(b) [For group coverage, specifically describe continuation/conversion provisions applicable to the certificate and group policy;]

(c) [Describe waiver of premium provisions or state that there are not such provisions.]

5. TERMS UNDER WHICH THE COMPANY MAY CHANGE PREMIUMS.

[In bold type larger than the maximum type required to be used for the other provisions of the outline of coverage, state whether or not the company has a right to change the premium, and if a right exists, describe clearly and concisely each circumstance under which the premium may change.]

6. TERMS UNDER WHICH THE POLICY OR CERTIFICATE MAY BE RETURNED AND PREMIUM REFUNDED.

(a) [Provide a brief description of the right to return–“free look” provision of the policy.]

(b) [Include a statement that the policy either does or does not contain provisions providing for a refund or partial refund of premium upon the death of an insured or surrender of the policy or certificate. If the policy contains such provisions, include a description of them.]

7. THIS IS NOT MEDICARE SUPPLEMENT COVERAGE. If you are eligible for Medicare, review the Medicare Supplement Buyer’s Guide available from the insurance company.

(a) [For agents] Neither [insert company name] nor its agents represent Medicare, the federal government or any state government.

(b) [For direct response] [insert company name] is not representing Medicare, the federal government or any state government.

8. LONG-TERM CARE COVERAGE. Policies of this category are designed to provide coverage 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 as in a nursing home, in the community or in the home. This policy provides coverage in the form of a fixed dollar indemnity benefit for covered long-term care expenses, subject to policy [limitations] [waiting periods] and [coinsurance] requirements. [Modify this paragraph if the policy is not an indemnity policy.]

9. BENEFITS PROVIDED BY THIS POLICY.

(a) [Covered services, related deductibles, waiting periods, elimination periods and benefit maximums.]

(b) [Institutional benefits, by skill level.]

(c) [Non-institutional benefits, by skill level.]

(d) Eligibility for Payment of Benefits

[Activities of daily living and cognitive impairment shall be used to measure an insured’s need for long-term care and must be defined and described as part of the outline of coverage.] [Any additional benefit triggers must also be explained. If these triggers differ for different benefits, explanation of the triggers should accompany each benefit description. If an attending physician or other specified person must certify a certain level of functional dependency in order to be eligible for benefits, this too must be specified.]

10. LIMITATIONS AND EXCLUSIONS.

[Describe:

(a) Preexisting conditions;

(b) Non-eligible facilities and provider;

(c) Non-eligible levels of care (e.g., unlicensed providers, care or treatment provided by a family member, etc.);

(d) Exclusions and exceptions;

(e) Limitations.]

[This section should provide a brief specific description of any policy provisions which limit, exclude, restrict, reduce, delay, or in any other manner operate to qualify payment of the benefits described in Number 6 above.]

THIS POLICY MAY NOT COVER ALL THE EXPENSES ASSOCIATED WITH YOUR LONG-TERM CARE NEEDS.

11. RELATIONSHIP OF COST OF CARE AND BENEFITS. Because the costs of long-term care services will likely increase over time, you should consider whether and how the benefits of this plan may be adjusted. [As applicable, indicate the following:

(a) That the benefit level will not increase over time;

(b) Any automatic benefit adjustment provisions;

(c) Whether the insured will be guaranteed the option to buy additional benefits and the basis upon which benefits will be increased over time if not by a specified amount or percentage;

(d) If there is such a guarantee, include whether additional underwriting or health screening will be required, the frequency and amounts of the upgrade options, and any significant restrictions or limitations;

(e) And finally, describe whether there will be any additional premium charge imposed, and how that is to be calculated.]

12. ALZHEIMER’S DISEASE AND OTHER ORGANIC BRAIN DISORDERS. [State that the policy provides coverage for insureds clinically diagnosed as having Alzheimer’s disease or related degenerative and dementing illnesses. Specifically describe each benefit screen or other policy provision which provides preconditions to the availability of policy benefits for such an insured.]

13. PREMIUM.

[(a) State the total annual premium for the policy;

(b) If the premium varies with an applicant’s choice among benefit options, indicate the portion of annual premium which corresponds to each benefit option.]

14. ADDITIONAL FEATURES.

[(a) Indicate if medical underwriting is used;

(b) Describe other important features.]

15. CONTACT THE STATE SENIOR HEALTH INSURANCE ASSISTANCE PROGRAM IF YOU HAVE GENERAL QUESTIONS REGARDING LONG-TERM CARE INSURANCE. CONTACT THE INSURANCE COMPANY IF YOU HAVE SPECIFIC QUESTIONS REGARDING YOUR LONG-TERM CARE INSURANCE POLICY OR CERTIFICATE.

Prior to use, every insurer, health care service plan or other entity providing long-term care insurance in this State shall provide a copy of any long-term care insurance advertisement intended for use in this State whether through written, radio or television medium to the Insurance Commissioner of the State Delaware for review and approval by the Commissioner.

24.1 Every insurer, health care service plan or other entity marketing long-term care insurance coverage in this state, directly or through its producers, shall:

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

24.1.2 Establish marketing procedures to assure excessive insurance is not sold or issued.

24.1.3 Display prominently by type, stamp or other appropriate means, on the first page of the outline of coverage and policy, the following: "Notice to Buyer: This policy may not cover all of the costs associated with long-term care incurred by the buyer during the period of coverage. The buyer is advised to review carefully all policy limitations."

24.1.4 Inquire and otherwise make every reasonable effort to identify whether a prospective applicant or enrollee for long-term care insurance already has accident and sickness or long-term care insurance and the types and amounts of any such insurance.

24.1.5 Every insurer or entity marketing long-term care insurance shall establish auditable procedures for verifying compliance with this section 24.0.

24.1.6 If the state of Delaware is the state in which the policy or certificate is delivered or issued for delivery, the insurer shall, at solicitation, provide written notice to the prospective policyholder or certificate holder that the Elderinfo Program, a senior counseling program approved by the Commissioner, is available and the name, address and telephone number of the Elderinfo Program.

24.2 In addition to the practices prohibited in 18 Del.C. Ch. 23, Unfair Trade Practices, the following acts and practices are prohibited:

24.2.1 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.

24.2.2 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.

24.2.3 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.

25.1 This section shall not apply to life insurance policies that accelerate benefits for long-term care.

25.2 Every insurer, health care service plan or other entity marketing long-term care insurance (“insurer”) shall:

25.2.1 Develop and use suitability standards to determine whether the purchase or replacement of long-term care insurance is appropriate for the needs of the applicant;

25.2.2 Train its agents in the use of its suitability standards; and

25.2.3 Maintain a copy of its suitability standards and make them available for inspection upon request by the Commissioner.

25.3 Procedures required.

25.3.1 To determine whether the applicant meets the standards developed by the insurer, the agent and insurer shall develop procedures that take the following into consideration:

25.3.1.1 The ability to pay for the proposed coverage and other pertinent financial information related to the purchase of the coverage;

25.3.1.2 The applicant’s goals or needs with respect to long-term care and the advantages and disadvantages of insurance to meet these goals or needs; and

25.3.1.3 The values, benefits and costs of the applicant’s existing insurance, if any, when compared to the values, benefits and costs of the recommended purchase or replacement.

25.3.2 The insurer, and where an agent is involved, the agent shall make reasonable efforts to obtain the information set out in section 25.3.1 above. The efforts shall include presentation to the applicant, at or prior to application, the “Long-Term Care Insurance Personal Worksheet.” The personal worksheet used by the issuer shall contain, at a minimum, the information in the format contained in Appendix B, in not less than twelve (12) point type. The insurer may request the applicant to provide additional information to comply with its suitability standards. A copy of the insurer’s personal worksheet shall be filed with the Commissioner.

25.3.3 A completed personal worksheet shall be returned to the insurer prior to the insurer’s consideration of the applicant for coverage, except the personal worksheet need not be returned for sales of employer group long-term care insurance to employees and their spouses.

25.3.4 The sale or dissemination outside the company or agency by the issuer or agent of information obtained through the personal worksheet in Appendix B is prohibited.

25.4 The insurer shall use the suitability standards it has developed pursuant to this section in determining whether issuing long-term care insurance coverage to an applicant is appropriate.

25.5 Agents shall use the suitability standards developed by the insurer in marketing long-term care insurance.

25.6 At the same time as the personal worksheet is provided to the applicant, the disclosure form entitled “Things You Should Know Before You Buy Long-Term Care Insurance” shall be provided. The form shall be in the format contained in Appendix C, in not less than twelve (12) point type.

25.7 If the issuer determines that the applicant does not meet its financial suitability standards, or if the applicant has declined to provide the information, the issuer may reject the application. In the alternative, the issuer shall send the applicant a letter similar to Appendix D. However, if the applicant has declined to provide financial information, the issuer may use some other method to verify the applicant’s intent. Either the applicant’s returned letter or a record of the alternative method of verification shall be made part of the applicant’s file.

25.8 The insurer shall report annually to the Commissioner the total number of applications received from residents of this state, the number of those who declined to provide information on the personal worksheet, the number of applicants who did not meet the suitability standards, and the number of those who chose to confirm after receiving a suitability letter.

26.1 A long-term care insurance policy shall condition the payment of benefits on a determination of the insured’s ability to perform activities of daily living and on cognitive impairment. Eligibility for the payment of benefits shall not be more restrictive than requiring either a deficiency in the ability to perform not more than three (3) of the activities of daily living or the presence of cognitive impairment.

26.2 Activities of Daily Living

26.2.1 Activities of daily living shall include at least the following as defined in section 5.0 and in the policy:

26.2.1.1 Bathing;

26.2.1.2 Continence;

26.2.1.3 Dressing;

26.2.1.4 Eating;

26.2.1.5 Toileting; and

26.2.1.6 Transferring;

26.2.2 Insurers may use activities of daily living to trigger covered benefits in addition to those contained in section 26.2.1 as long as they are defined in the policy.

26.3 An insurer may use additional provisions for the determination of when benefits are payable under a policy or certificate; however the provisions shall not restrict, and are not in lieu of, the requirements contained in sections 26.1 and 26.2.

26.4 For purposes of this section the determination of a deficiency shall not be more restrictive than:

26.4.1 Requiring the hands-on assistance of another person to perform the prescribed activities of daily living; or

26.4.2 If the deficiency is due to the presence of a cognitive impairment, supervision or verbal cueing by another person is needed in order to protect the insured or others.

26.5 Assessments of activities of daily living and cognitive impairment shall be performed by licensed or certified professionals, such as physicians, nurses or social workers.

26.6 Long term care insurance policies shall include a clear description of the process for appealing and resolving benefit determinations.

26.7 The requirements set forth in this section shall be effective (12 months after adoption of this provision) and shall apply as follows:

26.7.1 Except as provided in section 26.7.2, the provisions of this section apply to a long-term care policy issued in this state on or after the effective date of the amended regulation.

26.7.2 For certificates issued on or after the effective date of this section, under a group long-term care insurance policy as defined in 18 Del.C. §7103(4)a, the provisions of this section shall not apply.

If a long-term care insurance policy or certificate replaces another long-term care insurance policy or certificate, the replacing insurer shall waive any time periods applicable to pre-existing conditions and probationary periods in the new long-term care insurance policy or certificate to the extent that similar exclusions have been satisfied under the original policy.

28.1 A long-term care insurance shopper's guide in the format developed by the National Association of Insurance Commissioners, or one developed or approved by the Commissioner, shall be provided to all prospective applicants of a long-term care insurance policy or certificate.

28.1.1 In the case of agent solicitations, an agent must deliver the shopper's guide prior to the presentation of an application or enrollment form.

28.1.2 In the case of direct response solicitations, the shopper's guide must be presented in conjunction with any application or enrollment form.

28.2 Life insurance policies or riders containing accelerated long-term care benefits are not required to furnish the above-referenced guide, but shall furnish the policy summary required under 18 Del.C. §7105 (j).

29.1 No policy or certificate may be delivered or issued for delivery in this state unless the insurer also offers to the policyholder or certificateholder the option to purchase a policy that provides for nonforfeiture benefits to the defaulting or lapsing policyholder or certificateholder.

29.2 This section does not apply to life insurance policies or riders containing accelerated long-term care benefits.

29.3 For purpose of this section, attained age rating is defined as a schedule of premiums starting from the issue date which increases with increasing age at least one percent per year to age fifty (50), and at least three percent (3%) per year beyond age fifty (50).

29.4 For purposes of this section, the nonforfeiture benefit shall be a shortened benefit period providing paid-up long-term care insurance coverage after lapse.The same benefits (amounts and frequency in effect at the time of lapse but not increased thereafter) will be payable for a qualifying claim, but the lifetime maximum dollars or days of benefit shall be determined as specified in section 29.1.3.

29.5 The standard nonforfeiture credit will be equal to 100 percent of the sum of all premiums paid, including the premiums paid prior to any changes in benefits. The insurer may offer additional shortened benefit period options, as long as the benefits for each duration equal or exceed the standard nonforfeiture credit for that duration. However, the minimum nonforfeiture credit shall not be less than thirty (30) times the daily nursing home benefit at the time of lapse. In either event, the calculation of the nonforfeiture credit is subject to the limitation of section 29.2.

29.6 Effective Dates

29.6.1 The nonforfeiture benefit shall begin not later than the end of the third year following the policy or certificate issue date. The contingent benefit upon lapse shall be effective during the first three (3) years.

29.6.2 Section 29.1.4.1 notwithstanding, no policy or certificate shall begin a nonforfeiture benefit later than the end of the third year following the policy or certificate issue date except that for a policy or certificate with attained age rating, the nonforfeiture benefit shall begin on the earlier of:

29.6.2.1 The end of the tenth year following the policy or certificate issue date; or

29.6.2.2 The end of the second year following the date the policy or certificate is no longer subject to attained age rating.

29.7 Nonforfeiture credits may be used for all care and services qualifying for benefits under the terms of the policy or certificate, up to the limits specified in the policy or certificate.

29.8 All benefits paid by the insurer while the policy or certificate is in premium paying status and in the paid up status will not exceed the maximum benefits which would have been payable if the policy or certificate had remained in premium paying status.

29.9 There shall be no difference in the minimum nonforfeiture benefit as required under this section for group and individual policies.

29.10 The requirements set forth in this section shall become effective on May 1, 1997, except for certificates issued on or after the effective date of this section under a group long-term care insurance policy as defined in 18 Del.C. §7103, which policy was in force at the time this amended regulation became effective.

29.11 Premiums charged for a policy or certificate containing nonforfeiture benefits shall be subject to the loss ratio requirements of section 18.0 treating the policy as a whole.

29.12 Rejection of nonforfeiture benefit.

29.12.1 A nonforfeiture benefit as provided in sections 29.1.2 and 29.1.3 shall be included in a long-term care insurance policy or certificate unless an insurer obtains a rejection of a nonforfeiture benefit signed by the policyholder or certificateholder as required in this section.

29.12.2 The rejection shall be considered part of the application and shall state: I have reviewed the outline of coverage and the nonforfeiture benefit as described therein. Specifically, I have reviewed Plan ___________ and I reject the nonforfeiture benefit.

29.13 Nonforfeiture benefits for qualified long-term care policies shall meet the following requirements:

29.13.1 The nonforfeiture provision shall be appropriately captioned:

29.13.2 The nonforfeiture provision shall provide a benefit available in the event of a default in the payment of any premiums and shall state that the amount of the benefit may be adjusted subsequent to being initially granted only as necessary to reflect changes in claims, persistency and interest as reflected in changes in rates for premium paying contracts approved by the Commissioner for the same contract form; and

29.13.3 The nonforfeiture provision shall provide at least one of the following:

29.13.3.1 Reduced paid-up insurance;

29.13.3.2 Extended term insurance;

29.13.3.3 Shortened benefit insurance; or

29.13.3.4 Other similar offerings approved by the Commissioner.

29.14 If the required offer of a nonforfeiture benefit is rejected, the insurer shall provide the contingent benefit upon lapse described below. In the event that a group policyholder elects to make the nonforfeiture benefit an option to the certificateholder, a certificate shall provide either the nonforfeiture benefit or the contingent benefit upon lapse.

29.14.1 The contingent benefit on lapse shall be triggered every time an insurer increases the premium rates to a level which results in a cumulative increase of the annual premium set forth below based on the insured’s issue age, and the policy or certificate lapses within 120 days of the due date of the premium so increased. Unless otherwise required, policyholders shall be notified at least thirty (30) days prior to the due date of the premium reflecting the rate increase.

29.14.2 On or before the effective date of a substantial premium increase as defined in section 29.8.1 above, the insurer shall:

29.14.2.1 Offer to reduce policy benefits provided by the current coverage without the requirement of additional underwriting so that required premium payments are not increased;

29.14.2.2 Offer to convert the coverage to a paid-up status with a shortened benefit period in accordance with the terms of section 29.5. This option may be elected at any time during the 120-day period referenced in section 29.8.1; and

29.14.2.3 Notify the policyholder or certificateholder that a default or lapse at any time during the 120-day period referenced in section 29.8.1 shall be deemed to be the election of the offer to convert in section 29.8.2.2 above.

29.14.2.4 The contingent benefit upon lapse shall begin not later than the end of the third year following the policy or certificate issue date.

30.1 An insurer or other entity may provide commission or other compensation to an agent or other representative for the sale of a long-term care insurance policy or certificate which shall not exceed thirty-five percent (35%) of the total premium paid for that policy year.

30.2 No entity shall provide compensation to its agents or other producers and no agent or producer shall receive compensation greater than twenty-five percent (25%) of the total premium paid for that policy year for the sale of a replacement long-term care insurance policy or certificate.

30.3 For purposes of this section, "compensation" includes pecuniary or non-pecuniary remuneration or any kind relating to the sale or renewal of the policy or certificate including but not limited to bonuses, gifts, prizes, awards and finders fees.

In addition to any other penalties provided by the laws of this state, any insurer and any agent found to violate any requirement of this state relating to the regulation of long-term care insurance or the marketing of such insurance shall be subject to a fine of up to three (3) times the amount of any commissions paid for each policy involved in the violation or up to $10,000, whichever is greater.

If any provision of this regulation or the application thereof to any person or circumstance is for any reason held to be invalid, the remainder of the regulation and the application of such provision to other persons or circumstances shall not be affected thereby.

This regulation became effective July 30, 1990, except Section 13 became effective July 1, 1993. Amendment #1 adopted nonforfeiture benefits (Section 26) on December 23, 1996, to become effective on May 1, 1997. Amendment #2 became effective on March 22, 1999 to become effective 120 days thereafter. Amendment #3 adding sections 8.0, 10.0 and 20.0 shall become became effective on January 1, 2005. Amendment #4 adding sections 11.6 through 11.11 become effective 10 days after entry of an Order and the publication of the finalized changes/

APPENDIX A

RESCISSION REPORTING FORM FOR

LONG-TERM CARE POLICIES

FOR THE STATE OF DELAWARE

FOR THE REPORTING YEAR 19[ ]

Company Name:___________________________________________

Address:______________________________________

Phone Number:__________________________________

Due: March 1 annually

Instructions:

The purpose of this form is to report all rescissions of long-term care insurance policies or certificates. Those rescissions voluntarily effectuated by an insured are not required to be included in this report. Please furnish one form per rescission.

Detailed reason for rescission: ________________________________________________

__________________________________

Signature

__________________________________

Name and Title (please type)

__________________________________

Date

APPENDIX B

Long Term Care Insurance

Personal Worksheet

People buy long-term care insurance for a variety of reasons. Some don’t want to use their own assets to pay for long-term care Some buy insurance to make sure they can choose the type of care they get. Others don’t want their family to have to pay for care or don’t want to go on Medicaid. But long term care insurance may be expensive, and may not be right for everyone.

By state law, the insurance company must fill out part of the information on this worksheet and ask you to fill out the rest to help you and the company decide if you should buy this policy.

Premium Information

Policy Form Numbers____________________

The premium for the coverage you are considering will be [$_________ per month, or $_______ per year,] [a one-time single premium of $____________.]

Type of Policy (non cancellable/guaranteed renewable):________________________________

The Company’s Right to Increase Premiums:

[The company cannot raise your rates on this policy.] [The company has a right to increase premiums on this policy in the future, provided it raises rates for all policies in the same class in this state.] [Insurers shall use appropriate bracketed statement. Rate guarantees shall not be shown on this form.]

Rate Increase History

The company has sold long-term care insurance since [year] and has sold this policy since [year]. [The company has never raised its rates for any long-term care policy it has sold in this state or any other state.] [The company has not raised its rates for this policy form or similar policy forms in this state or any other state in the last 10 years.] [The company has raised its premium rates on this policy form or similar policy forms in the last 10 years. Following is a summary of the rate increases.]

Questions Related to Your Income

How will you pay each year’s premium?

®From my Income ®From my Savings/Investments ®My Family will Pay

[® Have you considered whether you could afford to keep this policy if the premiums went up, for example, by 20%?]

What is your annual income? (check one)

®Under $10,000 ®$[10-20,000] ®$[20-30,000]

®$[30-50,000] ®Over $50,000

How do you expect your income to change over the next 10 years? (check one)

®No change ®Increase ®Decrease

If you will be paying premiums with money received only from your own income, a rule of thumb is that you may not be able to afford this policy if the premiums will be more than 7% of your income.

Will you buy inflation protection?(check one) ®Yes ® No

If not, have you considered who you will pay for the difference between future costs and your daily benefit amount?

®From my Income ®From my Savings/Investments ®My Family will Pay

How are you planning to pay for your care during the elimination period? (check one)

®From my Income ®From my Savings/Investments ®My Family will Pay

Question Related to Your Savings and Investments

Not counting your home, about how much are all of your assets (savings and investments) worth? (check one)

®Under $20,000 ®$20,000-$30,000 ®$30,000-$50,000 ®Over $50,000

How do you expect your assets to change over the next ten years? (check one)

®Stay about the same ®Increase ®Decrease

If you are buying this policy to protect your assets and your assets are less than $30,000, you may wish to consider other options for financing your long-term care.

Disclosure Statement

Signed:

(Applicant) (Date)

[® I explained to the applicant the importance of completing this information.

Signed:

(Agent Producer) (Date)

Agent’s Producer’s Printed Name: ]

[Note: In order for us to process your application, please return this signed statement to [name of company], along with your application.]

[My agent producer has advised me that this policy does not appear to be suitable for me. However, I still want the company to consider my application.

Signed: ]

(Applicant) (Date)

Drafting Note: Choose the appropriate sentences depending on whether this is a direct mail or agent sale.

The company may contact you to verify your answers.

Drafting Note: When the Long-Term Care Insurance Personal Worksheet is furnished to employees and their spouses under employer group policies, the text from the heading “Disclosure Statement” to the end of the page may be removed.

APPENDIX C

Things You Should Know Before You Buy Long-Term Care Insurance

Drafting Note: For single premium policies, delete this bullet; for noncancellable policies, delete the second sentence only.

APPENDIX D

Long-Term Care Insurance Suitability Letter

Dear [Applicant]:

Your recent application for long-term care insurance included a “personal worksheet,” which asked questions about your finances and your reasons for buying long-term care insurance. For your protection, state law requires us to consider this information when we review your application, to avoid selling a policy to those who may not need coverage.

[Your answers indicate that long-term care insurance may not meet your financial needs. We suggest that you review the information provided along with your application, including the booklet “Shopper’s Guide to Long-Term Care Insurance” and the page titled “Things You Should Know Before Buying Long-Term Care Insurance.” Your state insurance department also has information about long-term care insurance and may be able to refer you to a counselor free of charge who can help you decide whether to buy this policy.]

[You chose not to provide any financial information for us to review.]

Drafting Note: Choose the paragraph that applies.

We have suspended our final review of your application. If, after careful consideration, you still believe this policy is what you want, check the appropriate box below and return this letter to us within the next 60 days. We will then continue reviewing your application and issue a policy if you meet our medical standards.

If we do not hear from you within the next 60 days, we will close your file and not issue you a policy. You should understand that you will not have any coverage until we hear back from you, approve your application and issue you a policy.

Please check one box and return in the enclosed envelope.

® Yes, [although my worksheet indicates that long-term care insurance may not be a suitable purchase,] I wish to purchase this coverage. Please resume review of my application.

Drafting Note: Delete the phrase in brackets if the applicant did not answer the questions about income.

® No. I have decided not to buy a policy at this time.

APPLICANT’S SIGNATURE DATE

Please return to [issuer] at [address] by [date].

APPENDIX E

Claims Denial Reporting Form

Long-Term Care Insurance

OMITTED

APPENDIX F

Instructions:

This form provides information to the applicant regarding premium rate schedules, rate schedule adjustments, potential rate revisions, and policyholder options in the event of a rate increase.

Insurers shall provide all of the following information to the applicant:

Long Term Care Insurance

Potential Rate Increase Disclosure Form

1. [Premium Rate] [Premium Rate Schedules]: [Premium rate] [Premium rate schedules] that [is][are] applicable to you and that will be in effect until a request is made and [filed][approved] for an increase [is][are] [on the application][$_____])

Drafting Note: Use "approved" in states requiring prior approval of rates.

2. The [premium] [premium rate schedule] for this policy [will be shown on the schedule page of] [will be attached to] your policy.

3. Rate Schedule Adjustments:

The company will provide a description of when premium rate or rate schedule adjustments will be effective (e.g., next anniversary date, next billing date, etc.) (fill in the blank): __________________.

4. Potential Rate Revisions:

This policy is Guaranteed Renewable. This means that the rates for this product may be increased in the future. Your rates can NOT be increased due to your increasing age or declining health, but your rates may go up based on the experience of all policyholders with a policy similar to yours.

If you receive a premium rate or premium rate schedule increase in the future, you will be notified of the new premium amount and you will be able to exercise at least one of the following options:

"Pay the increased premium and continue your policy in force as is.

"Reduce your policy benefits to a level such that your premiums will not increase. (Subject to state law minimum standards.)

"Exercise your nonforfeiture option if purchased. (This option is available for purchase for an additional premium.)

"Exercise your contingent nonforfeiture rights.* (This option may be available if you do not purchase a separate nonforfeiture option.)

* Contingent Nonforfeiture

If the premium rate for your policy goes up in the future and you didn't buy a nonforfeiture option, you may be eligible for contingent nonforfeiture. Here's how to tell if you are eligible:

You will keep some long-term care insurance coverage, if:

"Your premium after the increase exceeds your original premium by the percentage shown (or more) in the following table; and

"You lapse (not pay more premiums) within 120 days of the increase.

The amount of coverage (i.e., new lifetime maximum benefit amount) you will keep will equal the total amount of premiums you've paid since your policy was first issued. If you have already received benefits under the policy, so that the remaining maximum benefit amount is less than the total amount of premiums you've paid, the amount of coverage will be that remaining amount.

Except for this reduced lifetime maximum benefit amount, all other policy benefits will remain at the levels attained at the time of the lapse and will not increase thereafter.

Should you choose this Contingent Nonforfeiture option, your policy, with this reduced maximum benefit amount, will be considered "paid-up" with no further premiums due.

Example:

"You bought the policy at age 65 and paid the $1,000 annual premium for 10 years, so you have paid a total of $10,000 in premium.

"In the eleventh year, you receive a rate increase of 50%, or $500 for a new annual premium of $1,500, and you decide to lapse the policy (not pay any more premiums).

"Your "paid-up" policy benefits are $10,000 (provided you have a least $10,000 of benefits remaining under your policy.)

Contingent Nonforfeiture

Cumulative Premium Increase over Initial Premium

That qualifies for Contingent Nonforfeiture

(Percentage increase is cumulative from date of original issue. It does NOT represent a one-time increase.)

APPENDIX G

Long-Term Care Insurance

Replacement and Lapse Reporting Form

OMITTED