Arkansas Code of 1987 (2023) › Title 23 - PUBLIC UTILITIES AND REGULATED INDUSTRIES (§§ 23-1-101 — 23-119-105) › Subtitle 3 - INSURANCE (§§ 23-60-101 — 23-103-417) › Chapter 96 - ARKANSAS LIFE AND HEALTH INSURANCE GUARANTY ASSOCIATION ACT (§§ 23-96-101 — 23-96-121) › Section 23-96-106 - Scope of chapter

(a)
This chapter shall not provide coverage for:
(1)
A portion of a policy or contract not guaranteed by the member insurer, or under which the risk is borne by the policy owner or contract owner;
(2)
A portion of a policy or contract of reinsurance, unless assumption certificates have been issued under the reinsurance policy or contract;
(3)
A policy or contract to the extent that the rate of interest on which it is based, or the interest rate, crediting rate, or similar factor determined by use of an index or other external reference stated in the policy or contract employed in calculating returns or changes in value:
(A)
Averaged over the period of four (4) years before the date on which the member insurer becomes an impaired or insolvent insurer under this chapter, whichever is earlier, exceeds a rate of interest determined by subtracting two (2) percentage points from Moody's Corporate Bond Yield Average averaged for that same four-year period or for such lesser period if the policy or contract was issued less than four (4) years before the member insurer becomes an impaired insurer or insolvent insurer under this chapter, whichever is earlier; and
(B)
On and after the date on which the Arkansas Life and Health Insurance Guaranty Association becomes obligated with respect to such policy or contract, exceeds the rate of interest determined by subtracting three (3) percentage points from Moody's Corporate Bond Yield Average as most recently available;
(4)
A portion of a policy or contract issued to a plan or program of an employer, association, or other person to provide life, health, or annuity benefits to its employees, members, or others to the extent that the plan or program is self-funded or uninsured, including without limitation benefits payable by an employer, association, or other person under:
(A)
A multiple employer welfare arrangement as defined in section 514 of the Employee Retirement Income Security Act of 1974, as amended;
(B)
A minimum premium group insurance plan;
(C)
A stop-loss group insurance plan; or
(D)
An administrative services only contract;
(5)
A portion of a policy or contract to the extent that it provides for dividends or experience rating credits, voting rights, or payment of any fees or allowances to any person, including the policy owner or contract owner, in connection with the service to or administration of such policy or contract;
(6)
A policy or contract issued in this state by a member insurer at a time when it was not licensed or did not have a certificate of authority to issue such policy or contract in this state;
(7)
An unallocated annuity contract issued to or in connection with a benefit plan protected under the Pension Benefit Guaranty Corporation regardless of whether the Pension Benefit Guaranty Corporation has yet become liable to make any payments with respect to the benefit plan;
(8)
A portion of an unallocated annuity contract that is not owned by a benefit plan, directly or in trust, or a government lottery or issued to a collective investment trust or similar pooled fund offered by a bank or other financial institution;
(9)
Any policy or contract written on the mutual assessment plan or stipulated premium plan prior to January 1, 1968, for which no statutory legal reserves are required;
(10)
A portion of a policy or contract to the extent that the assessments required by §
23-96-115
with respect to the policy or contract are preempted by federal or state law;
(11)
An obligation that does not arise under the express written terms of the policy or contract issued by the member insurer to the contract owner, policy owner, certificate holder, or enrollee, including without limitation:
(A)
Claims based on marketing materials;
(B)
Claims based on side letters, riders, or other documents that were issued by the member insurer without meeting applicable policy or contract form filing or approval requirements;
(C)
Misrepresentations of or regarding policy or contract benefits;
(D)
Extra-contractual claims; or
(E)
A claim for penalties or consequential or incidental damages;
(12)
A contractual agreement that establishes the member insurer's obligations to provide a book value accounting guaranty for defined contribution benefit plan participants by reference to a portfolio of assets that is owned by the benefit plan or its trustees, which in each case is not an affiliate of the member insurer;
(13)
(A)
A portion of a policy or contract to the extent it provides for interest or other changes in value to be determined by the use of an index or other external reference stated in the policy or contract, but which has not been credited to the policy or contract, or as to which the policy owner's or contract owner's rights are subject to forfeiture, as of the date the member insurer becomes an impaired or insolvent insurer under this chapter, whichever is earlier.
(B)
If a policy's or contract's interest or changes in value are credited less frequently than annually, then for purposes of determining the values that have been credited and are not subject to forfeiture under this subdivision (a)(13), the interest or change in value determined by using the procedures defined in the policy or contract will be credited as if the contractual date of crediting interest or changing values was the date of impairment or insolvency, whichever is earlier, and will not be subject to forfeiture;
(14)
A policy or contract providing any hospital, medical, prescription drug, or other healthcare benefits pursuant to Part C or Part D of Subchapter XVIII, Chapter 7, Title 42 of the United States Code,
42 U.S.C. §§ 1395
-
1395kkk-1
, commonly known as "Medicare Parts C and D", or Title XIX of the Social Security Act,
42 U.S.C. §§ 1396
-
1396w
5
, commonly referred to as Medicaid, or any regulations issued pursuant thereto; and
(15)
Structured settlement annuity benefits to which a payee, or beneficiary, has transferred his or her rights under a structured settlement factoring transaction as defined in
26 U.S.C. § 5891(c)(3)(A)
, regardless of whether or not the structured settlement factoring transaction occurred before or after the section became effective.
(b)
The protection provided by this chapter shall not apply where any guaranty protection is provided to residents of this state by the laws of the domiciliary state or jurisdiction of the impaired insurer or insolvent insurer other than this state.
(c)
The exclusion from coverage described in subdivision (a)(3) of this section does not apply to any portion of a policy or contract, including a rider, that provides long-term care or any other health insurance benefits.
Amended by Act 2019, No. 520,§ 2, eff. 7/24/2019.
Amended by Act 2013, No. 456,§ 2, eff. 8/16/2013.
Acts 1989, No. 444, §§ 3, 8; 1997, No. 950, § 1; 2001, No. 1603, § 52; 2001, No. 1604, § 120.