II 

112TH CONGRESS 

1ST SESSION S. 159 

To improve consumer protections for purchasers of long-term care insurance, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 25 (legislative day, JANUARY 5), 2011 

Mr. KOHL (for himself, Mr. WYDEN, and Ms. KLOBUCHAR) introduced the 

following bill; which was read twice and referred to the Committee on Finance 

A BILL 

To improve consumer protections for purchasers of longterm care insurance, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Confidence in Long-Term Care Insurance Act of 2011’’. 

6 (b) TABLE OF CONTENTS.—The table of contents of 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—NATIONAL MARKET SURVEY; MODEL DISCLOSURES AND 

DEFINITIONS; LTC INSURANCE COMPARE 

Sec. 101. NAIC National Market Survey. 

Sec. 102. Model disclosure form. 


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Sec. 103. LTC Insurance Compare. 

TITLE II—IMPROVED STATE CONSUMER PROTECTIONS FOR 

QUALIFIED LONG-TERM CARE INSURANCE CONTRACTS AND 

MEDICAID PARTNERSHIP POLICIES 

Sec. 201. Application of Medicaid partnership required model provisions to all 

tax-qualified long-term care insurance contracts. 

Sec. 202. Streamlined process for applying new or updated model provisions. 

TITLE III—IMPROVED CONSUMER PROTECTIONS FOR MEDICAID 

PARTNERSHIP POLICIES 

Sec. 301. Biennial reports on impact of Medicaid long-term care insurance 

partnerships. 

Sec. 302. Additional consumer protections for Medicaid partnerships. 

Sec. 303. Report to Congress regarding need for minimum annual compound 

inflation protection. 

TITLE IV—PRESERVATION OF STATE AUTHORITY 

Sec. 401. Preservation of State authority. 

1 TITLE I—NATIONAL MARKET 

2 SURVEY; MODEL DISCLO3 SURES AND DEFINITIONS; 

4 LTC INSURANCE COMPARE 

5 SEC. 101. NAIC NATIONAL MARKET SURVEY. 

6 (a) IN GENERAL.—The Secretary shall request the 

7 NAIC to conduct reviews of the national and State-specific 

8 markets for long-term care insurance policies and to sub9 mit reports to the Secretary on the results of such reviews 

10 every 5 years. 

11 (b) CONTENT.—The Secretary shall request that the 

12 reviews include, with respect to the period occurring since 

13 any prior review, analysis of the following: 

14 (1) Information on key market parameters, in15 cluding the number of carriers offering long-term 

16 care insurance, and the scope of coverage offered 


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1 under those policies (such as policies offering nurs2 ing-home only benefits, policies offering comprehen3 sive coverage, cash plans, and reimbursement plans, 

4 and hybrid products in which long-term care benefits 

5 are present). 

6 (2) The number of complaints received and re7 solved, including benefit denials. 

8 (3) The number of policies that have lapsed. 

9 (4) The number of agents trained and whether 

10 the training included competency tests. 

11 (5) The number of policyholders exhausting 

12 benefits. 

13 (6) The number of premium rate increases filed 

14 by carriers on a policy basis with the States, includ15 ing the ranges of the increases approved for or fi16 nally used. 

17 (7) The number of policyholders affected by any 

18 premium rate increases. 

19 (8) Requests for exceptions to State permitted 

20 accounting practices, as defined by the NAIC. 

21 (c) TIMING FOR REVIEWS AND REPORTS.—The Sec22 retary shall request the NAIC to— 

23 (1) complete the initial market review under 

24 this section not later than 2 years after the date of 

25 enactment of this Act; 


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1 (2) submit a report to the Secretary on the re2 sults of the initial review not later than December 

3 31, 2012; and 

4 (3) complete each subsequent review and sub5 mit each subsequent report not later than December 

6 31 of the fifth succeeding year. 

7 (d) CONSULTATION REQUIRED.—The Secretary shall 

8 request the NAIC to consult with State insurance commis9 sioners, appropriate Federal agencies, issuers of long-term 

10 care insurance, States with experience in long-term care 

11 insurance partnership plans, other States, representatives 

12 of consumer groups, consumers of long-term care insur13 ance policies, and such other stakeholders as the Secretary 

14 or the NAIC determine appropriate, to conduct the market 

15 reviews requested under this section. 

16 (e) DEFINITIONS.—In this section and section 102: 

17 (1) LONG-TERM CARE INSURANCE POLICY.— 

18 The term ‘‘long-term care insurance policy’’— 

19 (A) means— 

20 (i) a qualified long-term care insur21 ance contract (as defined in section 

22 7702B(b) of the Internal Revenue Code of 

23 1986); and 

24 (ii) a qualified long-term care insur25 ance contract that covers an insured who is 


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1 a resident of a State with a qualified State 

2 long-term care insurance partnership 

3 under clause (iii) of section 1917(b)(1)(C) 

4 of the Social Security Act (42 U.S.C. 

5 1396p(b)(1)(C)) or a long-term care insur6 ance policy offered in connection with a 

7 State plan amendment described in clause 

8 (iv) of such section; and 

9 (B) includes any other insurance policy or 

10 rider described in the definition of ‘‘long-term 

11 care insurance’’ in section 4 of the model Act 

12 promulgated by the National Association of In13 surance Commissioners (as adopted December 

14 2006). 

15 (2) NAIC.—The term ‘‘NAIC’’ means the Na16 tional Association of Insurance Commissioners. 

17 (3) SECRETARY.—The term ‘‘Secretary’’ means 

18 the Secretary of Health and Human Services. 

19 SEC. 102. MODEL DISCLOSURE FORM. 

20 (a) NAIC STUDY AND REPORT ON STATE DISCLO21 SURE REQUIREMENTS FOR LONG-TERM CARE INSUR22 ANCE.— 

23 (1) IN GENERAL.—The Secretary shall request 

24 the NAIC to carry out the activities described in 


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1 paragraph (2) and issue the report described in 

2 paragraph (3). 

3 (2) REVIEW AND DEVELOPMENT OF PROPOSED

4 MODEL DISCLOSURE REQUIREMENTS.—The activities 

5 described in this paragraph are the following: 

6 (A) MODEL ACT AND REGULATION DISCLO7 SURE REQUIREMENTS.—Review and describe 

8 disclosure requirements for long-term care in9 surance policies under the Model Act and regu10 lation. 

11 (B) STATE LAW DISCLOSURE REQUIRE12 MENTS.—Review and describe disclosure re13 quirements for long-term care insurance policies 

14 under State laws, including as part of such de15 scription an analysis of the effectiveness of the 

16 various existing disclosures. 

17 (C) LONG-TERM CARE SERVICES.—Review 

18 and describe differences in long-term care serv19 ices, including with respect to providers of such 

20 services and the settings in which such services 

21 are provided among States and develop stand22 ardized definitions for long-term care services. 

23 (D) IDENTIFICATION OF KEY ISSUES FOR

24 DEVELOPMENT OF MODEL DISCLOSURE MAR25 KETING FORM.—Identify and describe key 


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1 issues to consider in the development of a pro2 posed form for marketing long-term care insur3 ance policies. 

4 (3) REPORT.—The report described in this 

5 paragraph is an NAIC White Paper that is issued 

6 not later than 12 months after the date of enact7 ment of this Act and contains the results of the re8 views conducted under paragraph (2) and the de9 scriptions required under that paragraph. 

10 (b) NAIC WORKING GROUP TO DEVELOP MODEL

11 DISCLOSURE FORM FOR LONG-TERM CARE INSUR12 ANCE.— 

13 (1) IN GENERAL.—The Secretary shall request 

14 the NAIC to establish, not later than 60 days after 

15 the date on which the NAIC White Paper described 

16 in subsection (a)(3) is issued and in consultation 

17 with the Secretary and the Secretary of the Treas18 ury, a Working Group to develop a model disclosure 

19 form for marketing long-term care insurance poli20 cies. 

21 (2) WORKING GROUP MEMBERS.—The Working 

22 Group established under paragraph (1) shall be com23 posed of the following: 

24 (A) Representatives from State Depart25 ments of Health (or the most appropriate State 


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1 agencies with responsibility for oversight of the 

2 provision of long-term care). 

3 (B) Representatives of long-term care pro4 viders and facilities. 

5 (C) Consumer advocates. 

6 (D) Representatives of issuers of long-term 

7 care insurance policies. 

8 (E) Representatives of the NAIC or State 

9 insurance commissioners. 

10 (F) Other experts in long-term care and 

11 long-term care insurance policies selected by the 

12 Secretary and Secretary of the Treasury or the 

13 NAIC. 

14 (3) REQUIREMENTS FOR DEVELOPMENT OF

15 FORM.— 

16 (A) CONSIDERATIONS.—In developing the 

17 model form, the Working Group shall consider 

18 the following: 

19 (i) Variations among providers, serv20 ices, and facilities in the long-term care 

21 and long-term care insurance markets. 

22 (ii) The results of the reviews and the 

23 descriptions included in the NAIC White 

24 Paper issued under subsection (a)(3). 


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1 (iii) Such other information and fac2 tors as the Working Group determines ap3 propriate. 

4 (B) MINIMUM STANDARDS.—The Working 

5 Group shall ensure that the model has— 

6 (i) minimum standard definitions for 

7 coverage of the various types of services 

8 and benefits provided under long-term care 

9 insurance policies; 

10 (ii) minimum standard language for 

11 use by issuers of such policies, and for 

12 agents selling such policies, in explaining 

13 the services and benefits covered under the 

14 policies and restrictions on the services and 

15 benefits; 

16 (iii) minimum standard format, color 

17 and type size for disclosure documents; 

18 and 

19 (iv) such other minimum standards as 

20 the Working Group determines appro21 priate. 

22 (4) DEADLINE FOR DEVELOPMENT.—The 

23 Working Group shall issue a proposed model disclo24 sure form for marketing long-term care insurance 


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1 policies not later than 1 year after the date on which 

2 the Working Group is established. 

3 (5) ADOPTION AND INCORPORATION INTO

4 MODEL ACT AND REGULATION.—The Secretary shall 

5 request the NAIC to amend the Model Act and regu6 lation to incorporate the use of the proposed model 

7 disclosure form issued by the Working Group, not 

8 later than 1 year after the date on which the Work9 ing Group issues the form. 

10 (c) REQUIRED USE OF MODEL DISCLOSURE FORM

11 IN MARKETING LONG-TERM CARE INSURANCE POLI12 CIES.— 

13 (1) APPLICATION TO TAX-QUALIFIED AND MED14 ICAID PARTNERSHIP POLICIES.—Not later than 1 

15 year after the date on which the Working Group 

16 issues the proposed model disclosure form for mar17 keting long-term care insurance policies under sub18 section (b): 

19 (A) TAX-QUALIFIED POLICIES.—The Sec20 retary of the Treasury shall promulgate a regu21 lation requiring, not later than 1 year after the 

22 date on which the regulation is final, any issuer 

23 of a qualified long-term care insurance contract 

24 (as defined in section 7702B(b) of the Internal 

25 Revenue Code of 1986) to use the proposed 


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1 model disclosure form for marketing such con2 tracts, to the extent such disclosure is not in3 consistent with State law. 

4 (B) MEDICAID PARTNERSHIP POLICIES.— 

5 The Secretary shall promulgate a regulation re6 quiring, not later than 1 year after the date on 

7 which the regulation is final, any issuer that 

8 markets a qualified long-term care insurance 

9 contract intended to cover an insured who is a 

10 resident of a State with a qualified State long11 term care insurance partnership under clause 

12 (iii) of section 1917(b)(1)(C) of the Social Se13 curity Act (42 U.S.C. 1396p(b)(1)(C)) or a 

14 long-term care insurance policy offered in con15 nection with a State plan amendment described 

16 in clause (iv) of such section to use the pro17 posed model disclosure form for marketing such 

18 contracts. 

19 (2) APPLICATION TO ALL OTHER LONG-TERM

20 CARE INSURANCE POLICIES.—Not later than 18 

21 months, or the earliest date on which an amendment 

22 could be enacted for those States with legislatures 

23 which meet only every other year, after the date on 

24 which the NAIC adopts an amended Model Act and 

25 regulation to require the use of the proposed model 


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1 disclosure form issued by the Working Group under 

2 subsection (b), each State shall require by statute or 

3 regulation any issuer of a long-term care insurance 

4 policy to use the proposed model disclosure form 

5 when marketing such a policy in the State. 

6 SEC. 103. LTC INSURANCE COMPARE. 

7 (a) IN GENERAL.—Section 6021(d) of the Deficit Re8 duction Act of 2005 (42 U.S.C. 1396p note) is amended— 

9 (1) in paragraph (2)— 

10 (A) in subparagraph (A)— 

11 (i) in clause (ii), by striking ‘‘and’’ at 

12 the end; 

13 (ii) in clause (iii), by striking the pe14 riod at the end and inserting ‘‘; and’’; and 

15 (iii) by adding at the end the fol16 lowing: 

17 ‘‘(iv) establish an Internet directory of 

18 information regarding long-term care in19 surance, to be known as ‘LTC Insurance 

20 Compare’, that shall include the following: 

21 ‘‘(I) Comparison tools to assist 

22 consumers in evaluating long-term 

23 care insurance policies (as defined in 

24 subparagraph (D)) with different ben25 efits and features and that allow conVerDate Mar 15 2010 00:04 Feb 01, 2011 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S159.IS S159

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1 sumers to compare the price, long2 term premium stability, and carrier fi3 nancial strength of such policies. 

4 ‘‘(II) State-specific information 

5 about the long-term care insurance 

6 policies marketed in a State, including 

7 the following: 

8 ‘‘(aa) Whether a State has 

9 promulgated rate stability provi10 sions or has rate stability proce11 dures in place, and how the 

12 standards or procedures work. 

13 ‘‘(bb) The rating history for 

14 at least the most recent pre15 ceding 5 years for issuers selling 

16 long-term care insurance policies 

17 in the State. 

18 ‘‘(cc) An appropriate sam19 pling of the policy forms mar20 keted in the State. 

21 ‘‘(III) Links to State information 

22 regarding long-term care under State 

23 Medicaid programs (which may be 

24 provided, as appropriate, through 

25 Internet linkages to the websites of 


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1 State Medicaid programs) that in2 cludes the following: 

3 ‘‘(aa) The medical assistance 

4 provided under each State’s Med5 icaid program for nursing facility 

6 services and other long-term care 

7 services (including any functional 

8 criteria imposed for receipt of 

9 such services, as reported in ac10 cordance with section 

11 1902(a)(28)(D) of the Social Se12 curity Act) and any differences 

13 from benefits and services offered 

14 under long-term care insurance 

15 policies in the State and the cri16 teria for triggering receipt of 

17 such benefits and services. 

18 ‘‘(bb) If the State has a 

19 qualified State long-term care in20 surance partnership under sec21 tion 1917(b)(1)(C)(iii) of the So22 cial Security Act, information re23 garding how and when an indi24 vidual with a partnership long25 term care insurance policy who is 


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1 receiving benefits under the pol2 icy should apply for medical as3 sistance for nursing facility serv4 ices or other long-term care serv5 ices under the State Medicaid 

6 program and information regard7 ing about how Medicaid asset 

8 protection is accumulated over 

9 time.’’; and 

10 (B) by adding at the end the following: 

11 ‘‘(C) CURRENT INFORMATION.—The Sec12 retary of Health and Human Services shall en13 sure that, to the greatest extent practicable, the 

14 information maintained in the National Clear15 inghouse for Long-Term Care Information, in16 cluding the information required for LTC In17 surance Compare, is the most recent informa18 tion available. 

19 ‘‘(D) LONG-TERM CARE INSURANCE POL20 ICY DEFINED.—In subparagraph (A)(iv), the 

21 term ‘long-term care insurance policy’ means a 

22 qualified long-term care insurance contract (as 

23 defined in section 7702B(b) of the Internal 

24 Revenue Code of 1986), a qualified long-term 

25 care insurance contract that covers an insured 


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1 who is a resident of a State with a qualified 

2 State long-term care insurance partnership 

3 under clause (iii) of section 1917(b)(1)(C) of 

4 the Social Security Act (42 U.S.C. 

5 1396p(b)(1)(C)) or a long-term care insurance 

6 policy offered in connection with a State plan 

7 amendment described in clause (iv) of such sec8 tion, and includes any other insurance policy or 

9 rider described in the definition of ‘long-term 

10 care insurance’ in section 4 of the model Act 

11 promulgated by the National Association of In12 surance Commissioners (as adopted December 

13 2006).’’; 

14 (2) in paragraph (3)— 

15 (A) by striking ‘‘2010’’ and inserting 

16 ‘‘2015’’; and 

17 (B) by redesignating such paragraph as 

18 paragraph (4); and 

19 (3) by inserting after paragraph (2) the fol20 lowing: 

21 ‘‘(3) CONSULTATION ON LTC INSURANCE COM22 PARE.—The Secretary of Health and Human Serv23 ices shall consult with the National Association of 

24 Insurance Commissioners and the entities and stake25 holders specified in section 101(d) of the Confidence 


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1 in Long-Term Care Insurance Act of 2011 in de2 signing and implementing the LTC Insurance Com3 pare required under paragraph (2)(A)(iv).’’. 

4 (b) MEDICAID STATE PLAN REQUIREMENT TO SUB5 MIT NURSING FACILITY SERVICES FUNCTIONAL CRI6 TERIA DATA.—Section 1902(a)(28) of the Social Security 

7 Act (42 U.S.C. 1396a(a)(28)) is amended— 

8 (1) in subparagraph (C), by striking ‘‘and’’ 

9 after the semicolon; 

10 (2) in subparagraph (D)(iii), by adding ‘‘and’’ 

11 after the semicolon; and 

12 (3) by inserting after subparagraph (D)(iii), the 

13 following new subparagraph: 

14 ‘‘(E) for the annual submission of data re15 lating to functional criteria for the receipt of 

16 nursing facility services under the plan (in such 

17 form and manner as the Secretary shall speci18 fy);’’. 

19 (c) EFFECTIVE DATE.— 

20 (1) IN GENERAL.—Except as provided in para21 graph (2), the amendments made by this section 

22 take effect on the date of enactment of this Act. 

23 (2) EXTENSION OF EFFECTIVE DATE FOR

24 STATE LAW AMENDMENT.—In the case of a State 

25 plan under title XIX of the Social Security Act (42 


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1 U.S.C. 1396 et seq.) which the Secretary of Health 

2 and Human Services determines requires State legis3 lation or State regulation in order for the plan to 

4 meet the additional requirements imposed by the 

5 amendments made by subsection (b), the State plan 

6 shall not be regarded as failing to comply with the 

7 requirements of such title solely on the basis of its 

8 failure to meet these additional requirements before 

9 the first day of the first calendar quarter beginning 

10 after the close of the first regular session of the 

11 State legislature that begins after the date of enact12 ment of this Act. For purposes of the previous sen13 tence, in the case of a State that has a 2-year legis14 lative session, each year of the session is considered 

15 to be a separate regular session of the State legisla16 ture. 


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1 TITLE II—IMPROVED STATE 

2 CONSUMER PROTECTIONS 

3 FOR QUALIFIED LONG-TERM 

4 CARE INSURANCE CON5 TRACTS AND MEDICAID PART6 NERSHIP POLICIES 

7 SEC. 201. APPLICATION OF MEDICAID PARTNERSHIP RE8 QUIRED MODEL PROVISIONS TO ALL TAX9 QUALIFIED LONG-TERM CARE INSURANCE 

10 CONTRACTS. 

11 (a) IN GENERAL.—Section 7702B(g)(1) of the Inter12 nal Revenue Code of 1986 (relating to consumer protec13 tion provisions) is amended— 

14 (1) in subparagraph (A), by inserting ‘‘(but 

15 only to the extent such requirements do not conflict 

16 with requirements applicable under subparagraph 

17 (B)),’’ after ‘‘paragraph (2)’’, 

18 (2) by redesignating subparagraphs (B) and 

19 (C) as subparagraphs (C) and (D), respectively, and 

20 (3) by inserting after subparagraph (A), the fol21 lowing new subparagraph: 

22 ‘‘(B) the requirements of the model regula23 tion and model Act described in section 

24 1917(b)(5) of the Social Security Act,’’. 


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1 (b) EFFECTIVE DATE.—The amendments made by 

2 subsection (a) shall apply to contracts issued on or after 

3 the date that is 1 year after the date of enactment of this 

4 Act. 

5 SEC. 202. STREAMLINED PROCESS FOR APPLYING NEW OR 

6 UPDATED MODEL PROVISIONS. 

7 (a) SECRETARIAL REVIEW.— 

8 (1) TAX-QUALIFIED POLICIES.— 

9 (A) 2000 AND 2006 MODEL PROVISIONS.— 

10 Not later than 12 months after the date of en11 actment of this Act, the Secretary of the Treas12 ury, in consultation with the Secretary of 

13 Health and Human Services, shall review the 

14 model provisions specified in subsection (c)(1) 

15 for purposes of determining whether updating 

16 any such provisions for a provision specified in 

17 section 7702B(g)(2) of the Internal Revenue 

18 Code of 1986, or the inclusion of any such pro19 visions in such section, for purposes of an in20 surance contract qualifying for treatment as a 

21 qualified long-term care insurance contract 

22 under such Code, would improve consumer pro23 tections for insured individuals under such con24 tracts. 


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1 (B) SUBSEQUENT MODEL PROVISIONS.— 

2 Not later than 12 months after model provi3 sions described in paragraph (2) or (3) of sub4 section (c) are adopted by the National Associa5 tion of Insurance Commissioners, the Secretary 

6 of the Treasury, in consultation with the Sec7 retary of Health and Human Services, shall re8 view the model provisions to determine whether 

9 the application of such provisions to an insur10 ance contract for purposes of qualifying for 

11 treatment as a qualified long-term care insur12 ance contract under section 7702B(g)(2) of the 

13 Internal Revenue Code of 1986, would improve 

14 consumer protections for insured individuals 

15 under such contracts. 

16 (2) MEDICAID PARTNERSHIP POLICIES.— 

17 (A) SUBSEQUENT MODEL PROVISIONS.— 

18 Not later than 12 months after model provi19 sions described in paragraph (2) or (3) of sub20 section (c) are adopted by the National Associa21 tion of Insurance Commissioners, the Secretary 

22 of Health and Human Services, in consultation 

23 with the Secretary of the Treasury, shall review 

24 the model provisions to determine whether the 

25 application of such provisions to an insurance 


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1 contract for purposes of satisfying the require2 ments for participation in a qualified State 

3 long-term care insurance partnership under sec4 tion 1917(b)(1)(C)(iii) of such Act (42 U.S.C. 

5 1396p(b)(1)(C)(iii)) would improve consumer 

6 protections for insured individuals under such 

7 contracts. 

8 (B) REVIEW OF OTHER PARTNERSHIP RE9 QUIREMENTS.—The Secretary of Health and 

10 Human Services, in consultation with the Sec11 retary of the Treasury, shall review clauses (iii) 

12 and (iv) of section 1917(b)(1)(C) for purposes 

13 of determining whether the requirements speci14 fied in such clauses should be modified to pro15 vide improved consumer protections or, as ap16 propriate, to resolve any conflicts with the ap17 plication of the 2006 model provisions under 

18 paragraph (5) of section 1917(b) (as amended 

19 by section 302(a)) or with the application of 

20 any model provisions that the Secretary deter21 mines should apply to an insurance contract as 

22 a result of a review required under subpara23 graph (A). 

24 (b) EXPEDITED RULEMAKING.— 


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1 (1) TAX-QUALIFIED POLICIES.—Subject to 

2 paragraph (3), if the Secretary of the Treasury de3 termines that any model provisions reviewed under 

4 subsection (a)(1) should apply for purposes of an in5 surance contract qualifying for treatment as a quali6 fied long-term care insurance contract under the In7 ternal Revenue Code of 1986, the Secretary shall 

8 promulgate an interim final rule applying such pro9 visions for such purposes not later than 3 months 

10 after making such determination. 

11 (2) MEDICAID PARTNERSHIP POLICIES.—Sub12 ject to paragraph (3), if the Secretary of Health and 

13 Human Services determines that any model provi14 sions or requirements reviewed under subsection 

15 (a)(2) should apply for purposes of an insurance 

16 contract satisfying the requirements for participation 

17 in a qualified State long-term care insurance part18 nership under section 1917(b)(1)(C)(iii) of such Act 

19 (42 U.S.C. 1396p(b)(1)(C)(iii)), the Secretary shall 

20 promulgate an interim final rule applying such pro21 visions for such purposes not later than 3 months 

22 after making such determination. 

23 (3) CONSULTATION REQUIRED.—The Secretary 

24 of the Treasury and the Secretary of Health and 

25 Human Services, respectively, shall consult with the 


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1 National Association of Insurance Commissioners 

2 and the entities and stakeholders specified in section 

3 101(d) regarding the extent to which it is appro4 priate to apply the model provisions described in 

5 paragraph (1) or (2) (as applicable) to insurance 

6 contracts described in such paragraphs through pro7 mulgation of an interim final rule. If, after such 

8 consultation— 

9 (A) the Secretary of the Treasury deter10 mines it would be appropriate to promulgate an 

11 interim final rule, the Secretary of the Treasury 

12 shall use notice and comment rulemaking to 

13 promulgate a rule applying such provisions to 

14 insurance contracts described in paragraph (1); 

15 and 

16 (B) the Secretary of Health and Human 

17 Services determines it would be appropriate to 

18 promulgate an interim final rule, the Secretary 

19 of Health and Human Services shall use notice 

20 and comment rulemaking to promulgate a rule 

21 applying such provisions to insurance contracts 

22 described in paragraph (2). 

23 (4) RULE OF CONSTRUCTION RELATING TO AP24 PLICATION OF CONGRESSIONAL REVIEW ACT.—Noth25 ing in paragraphs (1), (2), or (3) shall be construed 


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1 as affecting the application of the sections 801 

2 through 808 of title 5, United States Code (com3 monly known as the ‘‘Congressional Review Act’’) to 

4 any interim final rule issued in accordance with such 

5 paragraphs. 

6 (5) TECHNICAL AMENDMENT ELIMINATING

7 PRIOR REVIEW STANDARD MADE OBSOLETE.—Sec8 tion 1917(b)(5) of the Social Security Act (42 

9 U.S.C. 1396p(b)(5)) is amended by striking sub10 paragraph (C). 

11 (c) MODEL PROVISIONS.—In this section, the term 

12 ‘‘model provisions’’ means— 

13 (1) each provision of the long-term care insur14 ance model regulation, and the long-term care insur15 ance model Act, respectively, promulgated by the 

16 National Association of Insurance Commissioners 

17 (as adopted as of October 2000 and as of December 

18 2006); 

19 (2) each provision of the model language relat20 ing to marketing disclosures and definitions devel21 oped under section 102(b)(1); and 

22 (3) each provision of any long-term care insur23 ance model regulation, or the long-term care insur24 ance model Act, respectively, promulgated by the 


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1 National Association of Insurance Commissioners 

2 and adopted after December 2006. 

3 TITLE III—IMPROVED CON4 SUMER PROTECTIONS FOR 

5 MEDICAID PARTNERSHIP 

6 POLICIES 

7 SEC. 301. BIENNIAL REPORTS ON IMPACT OF MEDICAID 

8 LONG-TERM CARE INSURANCE PARTNER9 SHIPS. 

10 Section 6021(c) of the Deficit Reduction Act of 2005 

11 (42 U.S.C. 1396p note) is amended to read as follows: 

12 ‘‘(c) BIENNIAL REPORTS.— 

13 ‘‘(1) IN GENERAL.—Not later than January 1, 

14 2012, and biennially thereafter, the Secretary of 

15 Health and Human Services (in this subsection re16 ferred to as the ‘Secretary’) shall issue a report to 

17 States and Congress on the long-term care insurance 

18 partnerships established in accordance with section 

19 1917(b)(1)(C)(ii) of the Social Security Act (42 

20 U.S.C. 1396p(b)(1)(C)(ii)). Each report shall in21 clude (with respect to the period the report address22 es) the following information, nationally and on a 

23 State-specific basis: 

24 ‘‘(A) Analyses of the extent to which such 

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1 fordable long-term care services and benefits 

2 and the impact of such partnerships on Federal 

3 and State expenditures on long-term care under 

4 the Medicare and Medicaid programs. 

5 ‘‘(B) Analyses of the impact of such part6 nerships on consumer decisionmaking with re7 spect to purchasing, accessing, and retaining 

8 coverage under long-term care insurance poli9 cies (as defined in subsection (d)(2)(D)), in10 cluding a description of the benefits and serv11 ices offered under such policies, the average 

12 premiums for coverage under such policies, the 

13 number of policies sold and at what ages, the 

14 number of policies retained and for how long, 

15 the number of policies for which coverage was 

16 exhausted, and the number of insured individ17 uals who were determined eligible for medical 

18 assistance under the State Medicaid program. 

19 ‘‘(2) DATA.—The reports by issuers of partner20 ship long-term care insurance policies required under 

21 section 1917(b)(1)(C)(iii)(VI) of the Social Security 

22 Act shall include such data as the Secretary shall 

23 specify in order to conduct the analyses required 

24 under paragraph (1). 


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1 ‘‘(3) PUBLIC AVAILABILITY.—The Secretary 

2 shall make each report issued under this subsection 

3 publicly available through the LTC Insurance Com4 pare website required under subsection (d). 

5 ‘‘(4) RULE OF CONSTRUCTION.—Nothing in 

6 this section shall be construed as requiring the Sec7 retary to conduct an independent review of each 

8 long-term care insurance policy offered under or in 

9 connection with such a partnership.’’. 

10 SEC. 302. ADDITIONAL CONSUMER PROTECTIONS FOR MED11 ICAID PARTNERSHIPS. 

12 (a) APPLICATION OF 2006 MODEL PROVISIONS.— 

13 (1) UPDATING OF 2000 REQUIREMENTS.— 

14 (A) IN GENERAL.—Section 

15 1917(b)(5)(B)(i) of the Social Security Act (42 

16 U.S.C. 1396p(b)(5)(B)(i)) is amended by strik17 ing ‘‘October 2000’’ and inserting ‘‘December 

18 2006’’. 

19 (B) CONFORMING AMENDMENTS.— 

20 (i) Subclause (XVII) of such section is 

21 amended by striking ‘‘section 26’’ and in22 serting ‘‘section 28’’. 

23 (ii) Subclause (XVIII) of such section 

24 is amended by striking ‘‘section 29’’ and 

25 inserting ‘‘section 31’’. 


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1 (iii) Subclause (XIX) of such section 

2 is amended by striking ‘‘section 30’’ and 

3 inserting ‘‘section 32’’. 

4 (2) APPLICATION TO GRANDFATHERED PART5 NERSHIPS.—Section 1917(b)(1)(C)(iv) of such Act 

6 (42 U.S.C. 1396p(b)(1)(C)(iv)) is amended by in7 serting ‘‘, and the State satisfies the requirements of 

8 paragraph (5)’’ after ‘‘2005’’. 

9 (b) APPLICATION OF PRODUCER TRAINING MODEL

10 ACT REQUIREMENTS.—Section 1917(b)(1)(C) of such Act 

11 (42 U.S.C. 1396p(b)(1)(C)) is amended— 

12 (1) in clause (iii)(V), by inserting ‘‘and satisfies 

13 the producer training requirements specified in sec14 tion 9 of the model Act specified in paragraph (5)’’ 

15 after ‘‘coverage of long-term care’’; and 

16 (2) in clause (iv), as amended by subsection 

17 (a)(2), by inserting ‘‘clause (iii)(V) and’’ before 

18 ‘‘paragraph (5)’’. 

19 (c) APPLICATION OF ADDITIONAL REQUIREMENTS

20 FOR ALL PARTNERSHIPS.—Section 1917(b) of the Social 

21 Security Act (42 U.S.C. 1396p(b)) is amended— 

22 (1) in paragraph (1)(C)— 

23 (A) in clause (iii)— 

24 (i) by inserting after subclause (VII) 

25 the following new subclause: 


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1 ‘‘(VIII) The State satisfies the re2 quirements of paragraph (6).’’; and 

3 (ii) in the flush sentence at the end, 

4 by striking ‘‘paragraph (5)’’ and inserting 

5 ‘‘paragraphs (5) and (6)’’; and 

6 (B) in clause (iv), as amended by sub7 sections (a)(2) and (b)(2), by striking ‘‘para8 graph (5)’’ and inserting ‘‘paragraphs (5) and 

9 (6)’’; and 

10 (2) by adding at the end the following new 

11 paragraph: 

12 ‘‘(6) For purposes of clauses (iii)(VIII) and (iv) of 

13 paragraph (1)(C), the requirements of this paragraph are 

14 the following: 

15 ‘‘(A) The State requires issuers of long-term 

16 care insurance policies to— 

17 ‘‘(i) use marketing materials filed with the 

18 State for purposes of the partnership in all 

19 sales and marketing activities conducted or sup20 ported by the issuers in the State with respect 

21 to any long-term care insurance policies mar22 keted by the issuer in the State; 

23 ‘‘(ii) provide such materials to all agents 

24 selling long-term care insurance policies in the 

25 State; 


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1 ‘‘(iii) ensure that agent training and edu2 cation courses conducted or supported by the 

3 issuers incorporate discussion of marketing ma4 terials; and 

5 ‘‘(iv) make such materials available to any 

6 consumer upon request, and to make such ma7 terials available to all prospective purchasers of 

8 a policy offered under a qualified State long9 term care insurance partnership before submis10 sion of an application for coverage under that 

11 policy. 

12 ‘‘(B) The State requires issuers of long-term 

13 care insurance policies sold in the State to require 

14 agents to use any inflation protection comparison 

15 form developed by the National Association of Insur16 ance Commissioners when selling the policies in the 

17 State. 

18 ‘‘(C) The State requires issuers of long-term 

19 care insurance policies sold in the State to comply 

20 with the provisions of section 8 of the model Act 

21 specified in paragraph (5) relating to contingent 

22 nonforfeiture benefits. 

23 ‘‘(D) The State enacts legislation, not later 

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1 cies sold in the State that result in rates over the 

2 life of the policy that are no less protective of con3 sumers than those produced by the premium rate 

4 schedule increase standards specified in section 20 

5 of the model regulation specified in paragraph (5), 

6 unless the State has more stringent procedures or 

7 requirements. 

8 ‘‘(E) The State develops and updates marketing 

9 materials filed with the State whenever changes are 

10 made under the State plan that relate to eligibility 

11 for medical assistance for nursing facility services, 

12 including other long-term care services or the 

13 amount, duration, or scope of medical assistance for 

14 nursing facility services, and also provides to individ15 uals at the time of application for medical assistance 

16 under the State plan, or under a waiver of the plan 

17 materials that describe in clear, simple language the 

18 terms of eligibility, the benefits and services pro19 vided as such assistance, and rules relating to ad20 justment or recovery from the estate of an individual 

21 who receives such assistance. Such materials shall 

22 include a clear disclosure that medical assistance is 

23 not guaranteed to partnership policyholders who ex24 haust benefits under a partnership policy, and that 

25 Federal changes to the program under this title or 


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1 State changes to the State plan may affect an indi2 vidual’s eligibility for, or receipt of, such assistance. 

3 ‘‘(F) The State— 

4 ‘‘(i) through the State Medicaid agency 

5 under section 1902(a)(5) and in consultation 

6 with the State insurance department, develops 

7 materials explaining how the benefits and rules 

8 of long-term care policies offered by issuers par9 ticipating in the partnership interact with the 

10 benefits and rules under the State plan under 

11 this title; 

12 ‘‘(ii) requires agents to use such materials 

13 when selling or otherwise discussing how long14 term care policies offered by issuers partici15 pating in the partnership work with potential 

16 purchasers and to provide the materials to any 

17 such purchasers upon request; 

18 ‘‘(iii) informs holders of such policies of 

19 any changes in eligibility requirements under 

20 the State plan under this title and of any 

21 changes in estate recovery rules under the State 

22 plan as soon as practicable after such changes 

23 are made at the time or at the time of applica24 tion for medical assistance; and 


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1 ‘‘(iv) agrees to honor the asset protections 

2 of any such policy that were provided under the 

3 policy when purchased, regardless of whether 

4 the State subsequently terminates a partnership 

5 program under the State plan. 

6 ‘‘(G) The State Medicaid agency under section 

7 1902(a)(5) and the State insurance department 

8 enter into a memorandum of understanding to— 

9 ‘‘(i) inform consumers about long-term 

10 care policies offered by issuers participating in 

11 the partnership, the amount, duration, or scope 

12 of medical assistance for nursing facility serv13 ices or other long-term care services offered 

14 under the State plan, consumer protections, and 

15 any other issues such agency and department 

16 determine appropriate through such means as 

17 the State determines appropriate; and 

18 ‘‘(ii) jointly facilitate coordination in eligi19 bility determinations for medical assistance 

20 under the State plan and the provision of bene21 fits or other services under such policies and 

22 medical assistance provided under the State 

23 plan that includes— 


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1 ‘‘(I) the number of policyholders ap2 plying for medical assistance under the 

3 State plan; and 

4 ‘‘(II) the number of policyholders 

5 deemed eligible (and, if applicable, ineli6 gible) for such assistance. 

7 ‘‘(H) Subject to subparagraph (I), the State en8 ters into agreements with other States that have es9 tablished qualified State long-term care insurance 

10 partnerships under which such States agree to pro11 vide reciprocity for policyholders under such partner12 ships, including providing guaranteed asset protec13 tion to all individuals covered under a policy offered 

14 under a qualified State long-term care insurance 

15 partnership who bought such a policy in the State 

16 or in another State with such a partnership and 

17 with which the State has a reciprocity agreement. 

18 ‘‘(I)(i) In the case of a State described in para19 graph (1)(C)(iv) (in this subparagraph referred to as 

20 a ‘grandfathered partnership State’)— 

21 ‘‘(I) the grandfathered partnership State 

22 may, in lieu of entering into agreements that 

23 satisfy subparagraph (I), enter into individual 

24 reciprocity agreements with other States that 


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1 have established qualified State long-term care 

2 insurance partnerships; and 

3 ‘‘(II) if the grandfathered partnership 

4 State has not, as of January 1, 2014, entered 

5 into a reciprocity agreement with each State 

6 that has a qualified State long-term care insur7 ance partnership, the grandfathered partnership 

8 State shall enter into and comply with a reci9 procity agreement developed by the Secretary in 

10 accordance with clause (ii) for each partnership 

11 State that the grandfathered State does not 

12 have a reciprocity agreement with and, with re13 spect to each such State, for so long as the 

14 grandfathered partnership State does not have 

15 an individual reciprocity agreement with that 

16 State. 

17 ‘‘(ii) In developing a reciprocity agreement for 

18 purposes of clause (i)(II), the Secretary shall take 

19 into account— 

20 ‘‘(I) the difference in consumer protections 

21 under the partnership program of the grand22 fathered partnership State and the other part23 nership State that will be covered by the agree24 ment, and, to the greatest extent possible, pre25 serve the more protective requirements; and 


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1 ‘‘(II) the impact the reciprocity agreement 

2 will have on expenditures under the State plan 

3 under this title (including under any waivers of 

4 such plan) of each such State and, to the great5 est extent possible, minimize any negative im6 pact on such expenditures and States.’’. 

7 (d) EFFECTIVE DATE.— 

8 (1) IN GENERAL.—Except as provided in para9 graph (2), the amendments made by this section 

10 take effect on the date that is 1 year after the date 

11 of enactment of this Act. 

12 (2) EXTENSION OF EFFECTIVE DATE FOR

13 STATE LAW AMENDMENT.—In the case of a State 

14 plan under title XIX of the Social Security Act (42 

15 U.S.C. 1396 et seq.) which the Secretary of Health 

16 and Human Services determines requires State legis17 lation in order for the plan to meet the additional 

18 requirements imposed by the amendments made by 

19 this section, the State plan shall not be regarded as 

20 failing to comply with the requirements of such title 

21 solely on the basis of its failure to meet these addi22 tional requirements before the first day of the first 

23 calendar quarter beginning after the close of the 

24 first regular session of the State legislature that be25 gins after the date of enactment of this Act. For 


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1 purposes of the previous sentence, in the case of a 

2 State that has a 2-year legislative session, each year 

3 of the session is considered to be a separate regular 

4 session of the State legislature. 

5 SEC. 303. REPORT TO CONGRESS REGARDING NEED FOR 

6 MINIMUM ANNUAL COMPOUND INFLATION 

7 PROTECTION. 

8 Not later than 18 months after the date of enactment 

9 of this Act, the Secretary of Health and Human Services 

10 (in this section referred to as the ‘‘Secretary’’) shall sub11 mit a report to Congress that includes the Secretary’s rec12 ommendation regarding whether legislative or other ad13 ministrative action should be taken to require all long14 term care insurance policies sold after a date determined 

15 by the Secretary in connection with a qualified State long16 term care insurance partnership under clause (iii) of sec17 tion 1917(b)(1)(C) of the Social Security Act (42 U.S.C. 

18 1396p(b)(1)(C)) or a long-term care insurance policy of19 fered in connection with a State plan amendment de20 scribed in clause (iv) of such section, provide a minimum 

21 level of annual compound inflation protection, and if so, 

22 whether such requirements should be imposed on a basis 

23 related to the age of the policyholder at the time of pur24 chase. The Secretary shall include in the report informa25 tion on the various levels of inflation protection available 


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1 under such long-term care insurance partnerships and the 

2 methodologies used by issuers of such policies to calculate 

3 and present various inflation protection options under 

4 such policies, including policies with a future purchase op5 tion feature. 

6 TITLE IV—PRESERVATION OF 

7 STATE AUTHORITY 

8 SEC. 401. PRESERVATION OF STATE AUTHORITY. 

9 Nothing in this Act, any amendments made by this 

10 Act, or any rules promulgated to carry out this Act or 

11 such amendments, shall be construed to limit the authority 

12 of a State to enact, adopt, promulgate, and enforce any 

13 law, rule, regulation, or other measure with respect to 

14 long-term care insurance that is in addition to, or more 

15 stringent than, requirements established under this Act 

16 and the amendments made by this Act. 

Æ 


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