PART 1. TEXAS DEPARTMENT OF INSURANCE
SUBCHAPTER K. CONTINUING EDUCATION, ADJUSTER PRELICENSING EDUCATION PROGRAMS, AND LONG-TERM CARE PARTNERSHIP CERTIFICATION COURSES
28 TAC §§19.1001, 19.1002, 19.1005 - 19.1007, 19.1009, 19.1011, 19.1012, 19.1014, 19.1022, 19.1023
The Commissioner of Insurance adopts amendments to §§19.1001, 19.1002, 19.1005 - 19.1007, 19.1009, 19.1011, 19.1012, and 19.1014 and new §19.1022 and §19.1023, concerning long-term care partnership certification and continuing education courses and licensee training requirements. The amendments and new sections are adopted without changes to the proposed text published in the March 21, 2008, issue of the Texas Register (33 TexReg 2512).
REASONED JUSTIFICATION. The adopted amendments and new sections are necessary to implement Senate Bill (SB) 22, enacted by the 80th Legislature, Regular Session, effective March 1, 2008, which amends the Human Resources Code Chapter 32 and the Insurance Code Chapter 1651 to establish a long-term care partnership program in Texas. The Department posted an informal working draft of the proposed amendments and new sections on the Department's internet website from September 17 to September 28, 2007, and invited public input. The Department received one comment on the informal working draft proposal, agreed with the commenter, and revised the proposed amendments and new sections accordingly. The Department formally proposed the amendments and new sections in the March 21, 2008, issue of the Texas Register (33 TexReg 2512). The Department received no comments and no requests for a hearing on the proposal.
SB 22 requires each individual who sells a long-term care benefit plan under the partnership for long-term care program to complete training and demonstrate evidence of an understanding of these plans and how they relate to other public and private coverage of long-term care. SB 22 requires the Texas Health and Human Services Commission (HHSC) to provide information and technical assistance to the Department regarding its role in ensuring that each individual who sells a long-term care benefit plan under the partnership for long-term care program receives the required training and demonstrates evidence of an understanding of these plans. Additionally, SB 22 specifically requires such training to satisfy the training requirements imposed under the provisions governing the expansion of a state long-term care partnership program established under the federal Deficit Reduction Act of 2005 (DRA) (Pub. L. No. 109-171). Section 6021 of the DRA amends §1917(b) of the Social Security Act (42 U.S.C. §1396(p)(b)) to provide for the expansion of a qualified state long-term care insurance partnership program. In order to qualify as a state long-term care insurance partnership program, a state must submit a state plan amendment to the U.S. Department of Health and Human Services for approval that, at a minimum, meets the required elements set out in §6021(a)(1)(A)(iii) of the DRA. Specifically, §6021(a)(1)(A)(iii)(V) requires the state Medicaid agency to provide information and technical assistance to the state insurance department on its role of assuring that any individual who sells a long-term care insurance policy under the partnership receives training and demonstrates evidence of an understanding of such policies and how they relate to other public and private coverage of long-term care. The DRA does not prescribe any further training requirements, nor does it elaborate on the content of, or the procedures for, meeting the prescribed training requirements. Similarly, while SB 22 incorporates the training requirements of the DRA into its own provisions, it also does not elaborate on the elements necessary to satisfy the prescribed training requirements.
Section 6021(a)(1)(A)(iii)(III) of the DRA requires a qualified state long-term care partnership policy to meet several of the requirements of the Long-Term Care Insurance Model Act (Model Act) and the Long-Term Care Insurance Model Regulation (Model Regulation) promulgated by the National Association of Insurance Commissioners (NAIC). While the NAIC Model Act and the NAIC Model Regulation both prescribe requirements related to long-term care insurance policies, only the NAIC Model Act contains specific licensee training requirements related to the sale, solicitation, and negotiation of long-term care insurance. Neither the DRA nor SB 22 specifically requires the Department to consider the NAIC Model Act in adopting long-term care partnership training requirements. Nevertheless, the Department has determined that it is important that the Department consider the provisions of the NAIC Model Act in formulating its long-term care partnership training requirements for several reasons. First, modeling the Department's long-term care partnership training requirements on the long-term care training requirements of the NAIC Model Act will help ensure consistent regulation of the long-term care partnership market in Texas. Each provision of the NAIC Model Act, including the requirements specifically related to long-term care insurance policies and long-term care insurance training, is intended to function together to form a cohesive set of regulations for the long-term care market. SB 22 requires the Department to adopt minimum standards for a long-term care benefit plan that may qualify as an approved plan under the partnership for long-term care program. The standards must be consistent with provisions governing the expansion of a state long-term care partnership program established under the DRA. One of the requirements under the DRA is that a long-term care partnership policy meet several of the long-term care insurance policy requirements of the NAIC Model Act and the NAIC Model Regulation. Because a long-term care partnership policy must meet several of the long-term care insurance policy requirements of the NAIC Model Act, it is especially important that the long-term care partnership training regulations adopted by the Department operate compatibly with those requirements. Modeling the Department's long-term care partnership training requirements on the training requirements of the NAIC Model Act will ensure such compatibility and consistency. This is because, like the Department's long-term care partnership insurance policy requirements, the Department's long-term care partnership training regulations will also be based on the framework of the NAIC Model Act. Because all the provisions of the NAIC Model Act were purposefully developed to function together, regulations modeled after those provisions should also function together. Second, both long-term care insurance and long-term care partnership insurance function in a similar capacity. Because of the similarities between the two insurance products, a licensee should develop an understanding of long-term care insurance before mastering the more complex aspects of long-term care partnership insurance, such as asset disregard and Medicaid eligibility requirements. The training requirements of the NAIC Model Act are designed to focus on the core concepts and requirements of long-term care insurance. Including those provisions in the Department's long-term care partnership training requirements should first assist licensees in acquiring an understanding of the basic concepts and requirements of long-term care insurance. Licensees should then be able to supplement this foundation with an understanding of the more complex requirements of long-term care partnership insurance. Third, the provisions of the NAIC Model Act facilitate flexibility and innovation in the development of long-term care insurance coverage. Thus, the provisions of the NAIC Model Act provide for consideration of state long-term care insurance partnership programs where such programs have been approved and are operational. For example, the NAIC Model Act requires long-term care insurance training to include topics related to long-term care insurance, long-term care services, and if applicable, qualified state long-term care insurance partnership programs. Including the relevant training requirements of the NAIC Model Act that specifically relate to long-term care partnership policies in the Department's long-term care partnership training requirements will also assist licensees in developing a basic understanding of long-term care partnership insurance. Lastly, the provisions of the NAIC Model Act provide uniform, standardized training requirements that facilitate reciprocity among states implementing long-term care partnership programs. The Department's long-term care partnership training requirements incorporate the majority of the provisions of the NAIC Model Act. These adopted requirements are intended to promote reciprocal treatment of long-term care partnership training requirements among the ten other states (Florida, Idaho, Minnesota, Nebraska, North and South Dakota, Maine, Missouri, Oregon, and Rhode Island) that are currently implementing long-term care partnership programs that will also incorporate the majority of the provisions of the NAIC Model Act and among other states that may implement similar programs in the future.
The training framework of the NAIC Model Act is comprised of a one-time training course that an individual must complete in order to sell, solicit, or negotiate long-term care insurance, and where applicable, long-term care partnership insurance. The individual must also be licensed as an insurance producer for accident and health or sickness or other lines of authority, as applicable. The NAIC Model Act also provides that an individual already licensed and selling, soliciting, or negotiating long-term care insurance on the effective date of the enacting legislation may not continue to sell, solicit, or negotiate long-term care insurance unless the individual has completed a one-time training course within one year from the effective date of the applicable enacting legislation. In addition to the one-time training course, the NAIC Model Act requires an individual who sells, solicits, or negotiates long-term care insurance, and where applicable, long-term care partnership insurance, to complete ongoing training every 24 months thereafter. The one-time training course must be no less than eight hours in length, and the ongoing training must be no less than four hours every 24 months. The NAIC Model Act also allows both the one-time training course and the ongoing training to be approved for continuing education credit. The NAIC Model Act also requires specific topics related to long-term care insurance, long-term care services, and, where applicable, qualified long-term care insurance partnership programs, to be included in the one-time training course and the ongoing training. The NAIC Model Act prohibits any training from including insurer or company product specific information or materials. Additionally, the NAIC Model Act requires insurers to obtain verification that an individual has received the appropriate training, to maintain records of such verification, and to make such verification available to the Commissioner upon request. Lastly, the NAIC Model Act provides for reciprocity among states with regard to the training requirements.
As required by the DRA and SB 22, the Department met with the state's Medicaid agency, the Texas Health and Human Services Commission (HHSC), in August, 2007 and again in September, 2007 to discuss the Department's role in ensuring that each individual who sells a long-term care benefit plan under the partnership for long-term care program receives training and demonstrates evidence of an understanding of these plans. The Department and HHSC staff generally discussed the training provisions of the NAIC Model Act; the Department's existing process for certifying long-term care insurance continuing education courses and providers, whether long-term care partnership certification and continuing education courses and providers could be successfully integrated into the Department's existing processes; insurer, licensee, and provider reporting requirements; and reciprocity among the states with respect to long-term care partnership training requirements. Additionally, the Department and HHSC staff identified elements unique to long-term care partnership insurance that should be included in the Department's training requirements. As a result of HHSC's recommendations and technical assistance, the Department has incorporated two additional elements, Medicaid eligibility criteria and asset disregard, into the subject matter that must be included in a Department certified long-term care partnership certification course. The adopted sections also provide a web site address maintained by the Texas Department of Aging and Disability Services (DADS), where providers and licensees may obtain additional information and resource material regarding the long-term care partnership program, including a section of the website entitled "Resource for Agent Training: Texas Medicaid Eligibility and Long-Term Care Partnership" prepared by HHSC that provides guidance on related Medicaid eligibility issues. The information and resource material provided on this website will be maintained and updated by DADS, as necessary.
The majority of the requirements of the NAIC Model Act pertaining to long-term care insurance have been incorporated into the adopted sections with only a few necessary modifications. First, the Model Act addresses training requirements related to the sale, solicitation, or negotiation of long-term care insurance, and where applicable, long-term care partnership insurance. However, the adopted sections apply only to long-term care partnership insurance training requirements. This change is necessary to implement the requirements of SB 22 and the DRA, which specifically relate to long-term care partnership insurance. Second, the adopted sections do not address the use of insurer or company specific products, including marketing or sales information and materials, during training courses because §19.1008 of this title (relating to Certified Course Advertising, Modification, and Assignment), which is not amended under this adoption order, currently contains the Department's prohibitions regarding the use of company logos, references to specific company products, and the presentation of advertising materials during course instruction and examination periods. Therefore, it is not necessary to adopt the provision of the NAIC Model Act addressing the same subject matter for long-term care partnership insurance. Rather, the adopted sections apply the provisions of §19.1008 to long-term care partnership insurance and training requirements, as necessary. Third, the adopted sections slightly deviate from the provisions of the NAIC Model Act with regard to records maintenance and verification requirements. Instead of requiring insurers to maintain verification that a licensee has successfully completed a long-term care partnership certification or continuing education course, the adopted sections require a licensee and a course provider to maintain records verifying that a licensee completed a Department approved long-term care partnership certification or continuing education course. This requirement serves two purposes. First, to the extent possible, the adopted sections incorporate the requirements for long-term care partnership certification and continuing education courses and related long-term care partnership licensee requirements into the existing framework for provider registration, instructor, and speaker criteria; course criteria; course certification; submission applications, course expirations, and resubmissions; types of courses; requirements for successful completion of continuing education courses; and forms and fees. Because existing Department regulations require licensees and providers to maintain course completion records, it is not necessary for the Department to adopt the provisions of the NAIC Model Act addressing those regulatory areas. Additionally, the Department is separately proposing amendments (July 18, 2008 edition, of the Texas Register) that specify additional agent training verification and insurer certification requirements for long-term care partnership plans. These amendments amend Chapter 3, Subchapter Y of this title (relating to Standards for Long-term Care Insurance Coverage Under Individual and Group Policies). As a result, it is unnecessary for the Department to adopt the provisions of the NAIC Model Act addressing verification and maintenance requirements in these adopted amendments and new sections because those requirements will be addressed separately in the amendments to Chapter 3, Subchapter Y of this title. Fourth, the NAIC Model Act provides that an individual already licensed and selling, soliciting, or negotiating long-term care insurance on the effective date of the enacting legislation may not continue to sell, solicit, or negotiate long-term care insurance unless the individual has completed a one-time training course within one year from the effective date of the enacting legislation. The adopted sections differ from this NAIC Model Act provision in two ways. First, the adopted sections permit individuals already licensed and performing the acts of an agent with regard to a long-term care insurance policy on the effective date of adopted §19.1022 (relating to Long-Term Care Partnership Certification Course) to perform the acts of an agent with regard to a long-term care partnership insurance policy on the effective date of adopted §19.1022, provided that the individual completes a long-term care partnership certification course meeting the requirements of the subchapter no later than January 1, 2009. This modification is necessary for consistency with the other provisions of the adopted sections that relate to long-term care partnership insurance. Second, the adopted sections shorten by approximately 60 days the NAIC allotted time period in which an appropriately licensed individual may sell, solicit, or negotiate long-term care insurance prior to completing a one-time long-term care insurance training course. This modification is necessary to implement the long-term care partnership insurance certification requirements of SB 22. SB 22 requires each long-term care benefit plan issuer that offers a plan under the partnership for long-term care program to certify to the Commissioner that each individual who sells a plan on behalf of the issuer completes training and demonstrates evidence of an understanding of these plans and how these plans relate to other public and private coverage of long-term care. This provision of SB 22 will be implemented in the Department's separately proposed rules (July 18, 2008 edition, of the Texas Register ) relating to standards for long-term care insurance coverage under individual and group policies. Those rules propose that the SB 22 certifications be submitted periodically to the Commissioner beginning in January 2009. If the Department adopted the provision of the NAIC Model Act without modification of the allotted time period, individuals already licensed and selling, soliciting, or negotiating long-term care insurance on March 1, 2008, could not sell, solicit, or negotiate long-term care partnership insurance unless the individual completed a one-time training course within one year from March 1, 2008, which could be approximately 60 days after the first certifications would be due to the Commissioner under the separately proposed Department rules. In those cases, the certifications submitted to the Commissioner would not meet the requirements of SB 22 or Department regulation. This is because not all individuals selling, soliciting, or negotiating long-term care partnership insurance on behalf of long-term care benefit plan issuers would have completed the required training by the time the first certifications were due. By providing the January 1, 2009 deadline in the adopted sections in lieu of the allotted deadline in the NAIC Model Act, long-term care benefit plan issuers will be able to certify to the Commissioner, in January 2009, that all individuals performing the acts of an agent with regard to a long-term care partnership insurance policy on their behalf have completed the required training. Lastly, while the adopted sections address the three agent activities enumerated in the NAIC Model Act, the substantive requirements of adopted new §19.1022 and §19.1023 are based on the Insurance Code §4001.051 (relating to acts constituting acting as an agent), which specifies agent activities that are in addition to those enumerated in the NAIC Model Act. This modification is necessary to accurately incorporate activities under Texas law that an individual may take with regard to a long-term care partnership insurance policy that may qualify as the act of an agent and, therefore, subject the individual to Department regulation. Aside from these necessary modifications of the NAIC Model Act provisions, the remaining requirements of the NAIC Model Act are incorporated into the adopted sections without substantial change.
In general, and to the extent possible, the adopted amendments to §§19.1005, 19.1006, 19.1007, 19.1009, 19.1011, and 19.1012 are necessary to incorporate the requirements related to long-term care partnership certification and continuing education courses and related long-term care partnership licensee training into existing Department regulations relating to provider registration, instructor, and speaker criteria; course criteria; course certification; submission applications, course expirations, and resubmissions; types of courses; requirements for successful completion of continuing education courses; and forms and fees. For example, the adopted amendment to §19.1005(a) authorizes a provider applicant to seek initial registration or renewal registration from the Department to be a long-term care partnership certification course provider in the same manner that a provider applicant must seek initial registration or renewal registration from the Department to be a continuing education provider or an adjuster prelicensing education provider. Further, the adopted amendment to §19.1005(b) provides necessary consistency with the adopted amendment to §19.1005(a) by authorizing providers to certify and offer long-term care partnership certification courses in the same manner as, and in addition to, continuing education courses and adjuster prelicensing education courses. Lastly, the adopted amendment to §19.1005(f) provides necessary consistency with the adopted amendment to §19.1005(a) by prohibiting providers from using speakers in conjunction with long-term care partnership certification courses, unless the speaker qualifies as an instructor. Providers using speakers in conjunction with adjuster prelicensing courses and other continuing education courses that are not one-time event continuing education courses are subject to the same prohibition. The adopted amendment to §19.1006 that adds subsection (c) is necessary to apply the existing requirements of Subchapter K equally to courses certified for continuing education and long-term care partnership certification and long-term care partnership continuing education purposes, unless specifically stated otherwise. Subchapter K regulates agent and adjuster continuing education and adjuster prelicensing education programs. Adopted §19.1006(c) makes clear that, unless specifically stated otherwise, each provision of Subchapter K applies equally to courses certified for continuing education and long-term care partnership certification and long-term care partnership continuing education purposes. The "unless specifically stated otherwise" provision of adopted §19.1006(c) is necessary to provide the regulatory framework for long-term care partnership certification and long-term care partnership continuing education course requirements by incorporating such requirements into the existing regulatory framework of Subchapter K. Subchapter K currently provides such requirements for other Department licensees, including provider registration requirements, instructor, and speaker criteria requirements; course criteria requirements; course certification; submission applications, course expirations, and resubmissions requirements; types of courses; requirements for successful completion of continuing education courses; and forms and fees. The "unless specifically stated otherwise" provision is adopted in lieu of amending all of the applicable sections of Subchapter K to include specific references to long-term care partnership certification and continuing education course requirements. Therefore, under the adopted sections, unless specifically stated otherwise, the provisions of Subchapter K that apply to courses certified for continuing education purposes, including the adopted amendments as well as the provisions of Subchapter K that are not amended under this adoption order, also apply to courses certified for long-term care partnership certification and long-term care partnership continuing education purposes. Further, the adopted amendment to §19.1007(a) requires providers to submit long-term care partnership certification course applications to the Department in the same manner as providers are required to submit course certification applications for Department licensee continuing education courses and adjuster prelicensing training and education courses. This is necessary to provide consistency among course certification applications submitted by providers. Adopted §19.1009(c) is also consistent with and similar to the requirements related to Department licensee continuing education and adjuster prelicensing courses under §19.1009 with regard to complete course of study requirements and options for classroom, classroom equivalent, and self-study instruction. Adopted §19.1009(c) requires a provider to offer a long-term care partnership certification course as a complete course of study that meets the requirements of adopted §19.1022. Adopted §19.1022 prescribes the requirements for a long-term care partnership certification course, including course length and course content. Adopted §19.1009(c) and §19.1022 collectively require a provider to offer a long-term care partnership certification course only as a one-time, eight-hour unit. While a long-term care partnership certification course may be longer than eight hours in length, it may only be offered as a one-time course. Thus, under these adopted provisions, a provider could not offer or combine several, separate long-term care partnership certification courses in order to satisfy the one-time, eight-hour certification course requirement. The requirement that a long-term care partnership certification course must be provided to licensees in one sitting and as a one-time course is necessary to ensure consistency among provider materials and course content and to provide the best opportunity for meaningful feedback and interaction between licensees and course instructors. Piecemeal completion of a long-term care partnership certification course could potentially result in confusing or inconsistent course instruction, confusing or inconsistent teaching materials, and ineffective or inefficient participation by licensees. Additionally, adopted §19.1009(c) authorizes a provider to offer long-term care partnership certification courses as classroom, classroom equivalent, or self-study instruction. This option allows a licensee optimum scheduling flexibility because a licensee may choose the most convenient time and method for completing the course based on his or her personal schedule and preferences. The adopted amendment to §19.1011(a) requires providers to use actual attendance rosters to certify completion of a certified classroom long-term care partnership certification course. Additionally, the adopted amendment to §19.1011(a) authorizes providers to establish assessment measurements or additional completion requirements for successful completion of a classroom long-term care partnership certification course, provided that the requirements are fully disclosed in the registration materials before a licensee purchases the course. These requirements are consistent with the existing requirements related to completion certification for Department licensee classroom or one-time-event continuing education courses. The adopted amendment to §19.1011(b) requires providers to use periodic interactive inquiries to determine completion of a certified classroom equivalent long-term care partnership certification course. The adopted provisions also require licensees to complete all inquiry sections with a minimum score of at least 70 percent for each section. These requirements are consistent with the existing requirements related to completion certification for classroom equivalent continuing education courses. Lastly, the adopted amendment to §19.1011(c) requires providers to use a written, online, or computer-based final examination as the means of completion for all certified self-study long-term care partnership certification courses. Adopted §19.1011(c) also includes requirements relating to the content of course records for long-term care partnership certification self study examinations. These requirements are consistent with the existing requirements related to the content of course records for continuing education self-study examinations. Further, the adopted amendments to §19.1012 prescribe the same fees for administering the long-term care partnership certification program that are required for continuing education course certification. As provided under existing §19.1012(b), these fees are nonrefundable and apply unless the Department contracts with a third party to provide continuing education services. Finally, the adopted amendment to §19.1014(a) requires providers to maintain long-term care partnership certification records in the same manner and for the same length of time as continuing education and adjuster prelicensing education records. If long-term care partnership certification records are audited or reviewed and the validity or completeness of the records are questioned, the adopted amendment to §19.1014(e) grants providers 30 days from the date of notice to correct any discrepancies or to submit new documentation. The adopted amendment to §19.1014(e) also grants the same amount of time to providers with regard to adjuster prelicensing records. These adopted amendments are necessary to provide consistency with the existing provider compliance records provisions related to Department licensee continuing education records. Applying the existing regulations for continuing education courses and adjuster prelicensing education and instruction to long-term care partnership certification and continuing education courses and related long-term care partnership licensee training requirements where possible promotes stability and consistency in Department regulation, reduces additional costs and unnecessary use of resources, and encourages uniform treatment among continuing education and long-term care partnership certification course and licensee training requirements
Adopted new §19.1022 and §19.1023 are necessary to address new requirements that are unique to long-term care partnership certification and continuing education courses and related long-term care partnership licensee training requirements that are required under SB 22 and the DRA. Adopted new §19.1022 prescribes the requirements for long-term care partnership certification courses and related long-term care partnership licensee training requirements. First, adopted §19.1022(a) prohibits an individual from performing any action constituting the act of an agent under the Insurance Code §4001.051 with regard to a long-term care partnership insurance policy unless the licensee holds a current Life, Accident, and Health license issued by the Department and has completed a Department certified long-term care partnership certification course meeting the requirements of the subchapter. Adopted §19.1022(b) provides that an individual that holds a current Life, Accident, and Health license issued by the Department and is performing any action constituting the act of an agent pursuant to the Insurance Code §4001.051 with regard to a long-term care insurance policy at the time of the effective date of adopted §19.1022 may perform any action constituting the act of an agent pursuant to the Insurance Code §4001.051 with regard to a long-term care partnership insurance policy on the effective date of adopted §19.1022, provided that the individual completes a long-term care partnership certification course meeting the requirements of the subchapter no later than January 1, 2009. Adopted §19.1022(c) establishes the standards for a Department certified long-term care partnership certification course. Adopted §19.1022(d) permits a licensee to count a long-term care partnership certification course toward completion of the continuing education requirements prescribed in §19.1003 of Subchapter K (relating to Licensee Requirements). Additionally, §19.1022(d) requires a licensee choosing to use a long-term care partnership certification course to satisfy a portion of the continuing education requirements prescribed in §19.1003 to comply with §19.1013 of Subchapter K (relating to Licensee Record Maintenance). Adopted §19.1022(e) requires a licensee to maintain proof of completion of a long-term care partnership certification course for a period of four years from the date of completion of the course. Additionally, §19.1022(e) requires a licensee to provide proof of completion of a long-term care partnership certification course to the Department upon request. Adopted §19.1022(f) sets forth the requirements for a provider issued completion certificate for a long-term care partnership certification course. Adopted §19.1022(g) describes the course subjects that a long-term care partnership certification course outline must address. Adopted §19.1022(h) makes clear that providers must meet all of the requirements of Subchapter K before offering a long-term care partnership certification course to licensees. Adopted §19.1022(i) and §19.1022(j) are necessary to address reciprocity among the states with regard to long-term care partnership training requirements. Adopted §19.1022(i) specifies the conditions under which a non-resident licensee is not required to complete a long-term care partnership certification course required by the subchapter. Adopted §19.1022(j) specifies the conditions under which a non-resident licensee whose home state does not qualify as a long-term care insurance partnership state may comply with the requirements of adopted §19.1022. Adopted §19.1022(j) requires a non-resident licensee in such a situation to either complete a Department certified long-term care partnership certification course in this state that meets the requirements of the subchapter or designate a home state that qualifies as a long-term care partnership insurance state and meet the requirements of adopted §19.1022(i). Adopted §19.1022(k) is necessary to clarify that licensees that may be exempt from continuing education requirements provided under §19.1004 of Subchapter K (relating to Licensee Exemption from and Extension of Time for Continuing Education) are not exempt from the long-term care partnership certification course and related licensee training requirements of adopted §19.1022. This is necessary because neither SB 22 nor the DRA exempts any individuals from the long-term care partnership training requirements. The Department's adopted sections have the same framework as the NAIC Model Act, which requires individuals to complete a one-time, eight-hour long-term care partnership certification course. The NAIC Model Act also does not exempt any individuals from this requirement. Because neither the DRA, SB 22, nor the NAIC Model Act provide any individuals any exemptions from the long-term care partnership training requirements, individuals intending to perform any action constituting the act of an agent pursuant to the Insurance Code §4001.051 with regard to a long-term care partnership insurance policy must complete the long-term care partnership certification course required under adopted §19.1022, regardless of their exemption status under §19.1004. Lastly, adopted §19.1022(l) provides a website address maintained by the Texas Department of Aging and Disability Services (DADS), where providers and licensees may obtain additional information and resource material regarding the long-term care partnership program. Adopted §19.1023 is necessary to specify ongoing long-term care partnership licensee training requirements, which must be in the form of continuing education. Adopted §19.1023(a) specifies how often a licensee must complete the required long-term care partnership continuing education requirements and how many hours of long-term care partnership continuing education a licensee must complete. Adopted §19.1023(b) requires the continuing education hours required under adopted §19.1023(a) to comply with the course criteria in §19.1006 of Subchapter K (relating to Course Criteria) and to enhance the knowledge, understanding, and professional competence of the student with regard to subjects described in adopted §19.1022. Adopted §19.1023(c) makes clear that providers must meet all of the requirements of Subchapter K before offering a long-term care partnership continuing education course to licensees. Adopted §19.1023(d) specifies the conditions under which a non-resident licensee is not required to complete long-term care partnership continuing education as required by the subchapter. Adopted §19.1023(e) provides the conditions under which a non-resident licensee may comply with the requirements of the subchapter if his or her home state does not qualify as a long-term care insurance partnership state. Lastly, adopted §19.1023(f) is necessary to clarify that licensees that may be exempt from continuing education requirements provided under §19.1004 are not exempt from the ongoing training requirements of adopted §19.1023, which the Department is requiring in the form of continuing education. As explained previously, neither SB 22 nor the DRA exempts any individuals from the long-term care partnership training requirements, including the ongoing training requirements. The Department's adopted sections follow the framework of the NAIC Model Act that requires licensees to complete no less than four hours of long-term care partnership ongoing training. The NAIC Model Act also does not exempt any individuals from the long-term care partnership ongoing training requirements. Because neither the DRA, SB 22, nor the NAIC Model Act provide any individuals any exemptions from the long-term care partnership training requirements, individuals intending to perform any action constituting the act of an agent pursuant to the Insurance Code §4001.051 with regard to a long-term care partnership insurance policy must complete long-term care partnership continuing education under adopted §19.1023, regardless of their exemption status under §19.1004.
Finally, the adopted amendments to §19.1001(d) and §19.1002(b) are necessary to delete obsolete provisions relating to provider compliance dates and to amend the existing definitions of certain terms used in the subchapter. First, the adopted amendment to §19.1001(d), relating to provider compliance date, deletes the subsection in its entirety because the subsection is obsolete and no longer functions as it was originally intended. Section 19.1001(d) was originally adopted to be effective January 6, 2003, and Subchapter K was later amended to be effective January 19, 2006. Therefore, the calculation of the date of compliance as provided in §19.1001(d) is no longer applicable. Second, the adopted amendments to §19.1002(b) add a new definition of long-term care partnership insurance policy. SB 22 requires each individual who sells a long-term care benefit plan under the partnership for long-term care program to complete training and demonstrate evidence of an understanding of these plans and how the plans relate to other public and private coverage of long-term care. SB 22 requires each individual who sells a long-term care benefit plan under the partnership for long-term care program to complete training and demonstrate evidence of an understanding of these plans and how the plans relate to other public and private coverage of long-term care. The new definition in adopted §19.1002(b)(17) is necessary because adopted §19.1022 and §19.1023, which implement SB 22 by prescribing requirements for long-term care partnership certification and continuing education courses and related long-term care partnership licensee training, include references to long-term care partnership insurance policies. Other terms in §19.1002(b) are amended to provide for long-term care partnership certification and continuing education courses and related long-term care partnership licensee training.
HOW THE SECTIONS WILL FUNCTION. The following is a section-by-section overview of the adopted sections.
Subchapter Title. The adopted subchapter title more accurately reflects the subchapter's additional content, which includes requirements related to long-term care partnership certification and continuing education courses and related long-term care partnership licensee training requirements.
§19.1001. General Provisions. The adopted amendment to §19.1001(a) identifies an additional purpose of the subchapter, which is to specify procedures and requirements for certification and approval of long-term care partnership certification courses and licensee long-term care partnership training requirements, as authorized under the Insurance Code Chapter 1651, Subchapter C, and the Human Resources Code Chapter 32, Subchapter C.
The adopted amendment to §19.1001(d), relating to provider compliance date, deletes the subsection in its entirety because the subsection is obsolete and no longer functions as it was originally intended.
§19.1002. Definitions. The adopted amendments to §19.1002(b) add a new definition of long-term care partnership insurance policy. The adopted amendments to §19.1002(b) also amend the definition of provider to require registration with the Department in order to offer long-term care partnership certification courses. The adopted amendments to §19.1002(b) also amend the definition of provider registration to authorize utilization of the Department's process for providers seeking permission to offer long-term care partnership certification courses to licensees.
§19.1005. Provider Registration, Instructor, and Speaker Criteria. The adopted amendment to §19.1005(a) authorizes a provider applicant to seek initial registration or renewal registration from the Department to be a long-term care partnership certification course provider in the same manner that a provider applicant must seek initial registration or renewal registration from the Department to be a continuing education provider or an adjuster prelicensing education provider. The adopted amendment to §19.1005(b) provides necessary consistency with the adopted amendment to §19.1005(a) by authorizing providers to certify and offer long-term care partnership certification courses in the same manner as, and in addition to, continuing education courses and adjuster prelicensing education courses. Lastly, the adopted amendment to §19.1005(f) provides necessary consistency with the adopted amendment to §19.1005(a) by prohibiting providers from using speakers in conjunction with long-term care partnership certification courses, unless the speaker qualifies as an instructor.
§19.1006. Course Criteria. Adopted §19.1006(c) prescribes the general course criteria for a Department certified long-term care partnership certification course. Specifically, adopted §19.1006(c) requires that the course content of a Department certified long-term care partnership certification course enhance the student's knowledge, understanding, and professional competence regarding the subjects specified in adopted §19.1022 (relating to Long-Term Care Partnership Certification Course). Adopted §19.1006(c) also makes clear that, unless specifically stated otherwise, each provision of Subchapter K applies equally to courses certified for continuing education and long-term care partnership certification and long-term care partnership continuing education purposes.
§19.1007. Course Certification Submission Applications, Course Expirations, and Resubmissions. The adopted amendment to §19.1007(a) requires providers to submit long-term care partnership certification course applications to the Department in the same manner as providers are required to submit course certification applications for Department licensee continuing education courses and adjuster prelicensing training and education courses. Specifically, the adopted amendment to §19.1007(a)(7) requires a provider to include a statement identifying that a course is for long-term care partnership certification, along with the TDI license number and the name of the student completing the course, in the sample certificate of completion that is submitted to the Department as part of a course certification application. The adopted amendment to §19.1007(a)(8) also requires a provider to include a statement in the submitted course certification application that the course is intended for long-term care partnership certification and whether the course is primarily intended to be open to all licensees or has a restricted enrollment.
§19.1009. Types of Courses. Adopted §19.1009(c) requires a provider to offer a long-term care partnership certification course as a complete course of study that meets the requirements of adopted §19.1022. Adopted §19.1022 prescribes the requirements for a long-term care partnership certification course, including course length and course content. Adopted §19.1009(c) and §19.1022 require a provider to offer a long-term care partnership certification course only as a one-time, eight-hour unit. Additionally, adopted §19.1009(c) authorizes a provider to offer long-term care partnership certification courses as classroom, classroom equivalent, or self-study instruction.
§19.1011. Requirements for Successful Completion of Continuing Education Courses. The adopted amendment to §19.1011(a) requires providers to use actual attendance rosters to certify completion of a certified classroom long-term care partnership certification course. Additionally, the adopted amendment to §19.1011(a) authorizes providers to establish assessment measurements or additional completion requirements for successful completion of a classroom long-term care partnership certification course, provided that the requirements are fully disclosed in the registration materials before a licensee purchases the course. The adopted amendment to §19.1011(b) requires providers to use periodic interactive inquiries to determine completion of a certified classroom equivalent long-term care partnership certification course. The adopted provisions also require licensees to complete all inquiry sections with a minimum score of at least 70 percent for each section. The adopted amendment to §19.1011(c) requires providers to use a written, online, or computer-based final examination as the means of completion for all certified self-study long-term care partnership certification courses.
§19.1012. Forms and Fees. The adopted amendments to §19.1012 prescribe the same fees for administering the long-term care partnership certification program that are required for continuing education course certification. As provided under existing §19.1012(b), these fees are nonrefundable and apply unless the Department contracts with a third party to provide continuing education services. The adopted fee amounts are: provider original registration $50 and provider renewal $50; continuing education course certification initial submission $10 for each hour of course credit requested on the application; resubmission, $10 for each hour of course credit requested on the application; and course assignment, $50 per assignment.
§19.1014. Provider Compliance Records. The adopted amendment to §19.1014(a) requires providers to maintain long-term care partnership certification records in the same manner and for the same length of time as continuing education and adjuster prelicensing education records. If long-term care partnership certification records are audited or reviewed and the validity or completeness of the records are questioned, the adopted amendment to §19.1014(e) grants providers 30 days from the date of notice to correct any discrepancies or to submit new documentation. The adopted amendment to §19.1014(e) also grants the same amount of time to providers with regard to adjuster prelicensing records.
§19.1022. Long-Term Care Partnership Certification Course. Adopted new §19.1022 prescribes the requirements for long-term care partnership certification courses and related long-term care partnership licensee training requirements. First, adopted §19.1022(a) prohibits an individual from performing any action constituting the act of an agent under the Insurance Code §4001.051 with regard to a long-term care partnership insurance policy unless the licensee holds a current Life, Accident, and Health license issued by the Department and has completed a Department certified long-term care partnership certification course meeting the requirements of the subchapter. Adopted §19.1022(b) provides that an individual that holds a current Life, Accident, and Health license issued by the Department and is performing any action constituting the act of an agent pursuant to the Insurance Code §4001.051 with regard to a long-term care insurance policy at the time of the effective date of adopted §19.1022 may perform any action constituting the act of an agent pursuant to the Insurance Code §4001.051 with regard to a long-term care partnership insurance policy on the effective date of adopted §19.1022, provided that the individual completes a long-term care partnership certification course meeting the requirements of the subchapter no later than January 1, 2009. Adopted §19.1022(c) establishes the standards for a Department certified long-term care partnership certification course. Under this subsection, a Department certified long-term care partnership certification course must be at least eight hours in length, must cover the subjects specifically described in adopted §19.1022(g), and must be submitted to the Department for approval in compliance with the requirements of §19.1007 of Subchapter K (relating to Course Certification Submission Applications, Course Expirations, and Resubmissions). Adopted §19.1022(d) permits a licensee to count a long-term care partnership certification course toward completion of the continuing education requirements prescribed in §19.1003 of Subchapter K (relating to Licensee Requirements). Additionally, §19.1022(d) requires a licensee choosing to use a long-term care partnership certification course to satisfy a portion of the continuing education requirements prescribed in §19.1003 to comply with §19.1013 of Subchapter K (relating to Licensee Record Maintenance). Adopted §19.1022(e) requires a licensee to maintain proof of completion of a long-term care partnership certification course for a period of four years from the date of completion of the course. Additionally, §19.1022(e) requires a licensee to provide proof of completion of a long-term care partnership certification course to the Department upon request. Adopted §19.1022(f) sets forth the requirements for a provider issued completion certificate for a long-term care partnership certification course. Specifically, §19.1022(f) requires a provider issued completion certificate for a long-term care partnership certification course to meet the requirements of §19.1011 of Subchapter K (relating to Requirements for Successful Completion of Continuing Education Courses). Adopted §19.1022(g) describes the course subjects that a long-term care partnership certification course outline must address, including (i) long-term care insurance; (ii) long-term care services and providers; (iii) qualified state long-term care insurance partnership programs, which must include state and federal requirements; the relationship between qualified state long-term care insurance partnership programs and other public and private coverage of long-term care services, including Medicaid; available long-term care services and providers and changes or improvements in long-term care services or providers; (iv) alternatives to the purchase of private long-term care insurance; (v) the effect of inflation on benefits and the importance of inflation protection; (vi) consumer suitability standards and guidelines; (vii) Medicaid eligibility criteria and requirements, including financial eligibility criteria and requirements; and (viii) asset disregard under qualified state long-term care partnership programs, including the interaction between asset disregard and Medicaid rules. Adopted §19.1022(h) makes clear that providers must meet all of the requirements of Subchapter K before offering a long-term care partnership certification course to licensees. Adopted §19.1022(i) and §19.1022(j) address reciprocity among the states with regard to long-term care partnership training requirements. Adopted §19.1022(i) specifies the conditions under which a non-resident licensee is not required to complete a long-term care partnership certification course required by the subchapter. Specifically, under the provisions of §19.1022(i), a non-resident licensee is not required to complete a long-term care partnership certification course required by the subchapter if the non-resident licensee holds a comparative, current license issued by his or her home state; the non-resident licensee's home state qualifies as a long-term care insurance partnership state; and upon Department request, both the insurer who appointed the non-resident licensee and the non-resident licensee are able to provide proof of the non-resident's completion of a long-term care partnership certification course in the non-resident licensee's home state with requirements substantially similar to those of adopted §19.1022. Adopted §19.1022(j) specifies the conditions under which a non-resident licensee whose home state does not qualify as a long-term care insurance partnership state may comply with the requirements of adopted §19.1022. Adopted §19.1022(j) requires a non-resident licensee in such a situation to either complete a Department certified long-term care partnership certification course in this state that meets the requirements of the subchapter or designate a home state that qualifies as a long-term care partnership insurance state and meet the requirements of adopted §19.1022(i). Adopted §19.1022(k) makes clear that licensees that may be exempt from continuing education requirements provided under §19.1004 of Subchapter K (relating to Licensee Exemption from and Extension of Time for Continuing Education) are not exempt from the long-term care partnership certification course and related licensee training requirements of adopted §19.1022. Lastly, adopted §19.1022(l) provides a website address maintained by the Texas Department of Aging and Disability Services (DADS), where providers and licensees may obtain additional information and resource material regarding the long-term care partnership program.
§19.1023. Long-Term Care Partnership Continuing Education. Adopted §19.1023 prescribes the requirements for ongoing long-term care partnership licensee training requirements, which must be in the form of continuing education. Adopted §19.1023(a) specifies how often a licensee must complete the required long-term care partnership continuing education requirements and how many hours of long-term care partnership continuing education a licensee must complete. Specifically, under §19.1023(a), in each reporting period following the reporting period in which a licensee completed a long-term care partnership certification course, a licensee must complete at least four hours of Department certified continuing education, during each reporting period, as part of the licensee's continuing education requirements prescribed in §19.1003. Adopted §19.1023(b) requires the continuing education hours required under adopted §19.1023(a) to comply with the course criteria in §19.1006 of Subchapter K (relating to Course Criteria) and to enhance the knowledge, understanding, and professional competence of the student with regard to subjects described in adopted §19.1022. Adopted §19.1023(c) makes clear that providers must meet all of the requirements of Subchapter K before offering a long-term care partnership continuing education course to licensees. Adopted §19.1023(d) specifies the conditions under which a non-resident licensee is not required to complete long-term care partnership continuing education as required by the subchapter. Under the provisions of §19.1023(d), a non-resident licensee is not required to complete four hours of long-term care partnership continuing education if the non-resident licensee is in compliance with the long-term care partnership continuing education requirements of his or her home state and if his or her home state qualifies as a long-term care partnership insurance state. Adopted §19.1023(e) provides the conditions under which a non-resident licensee may comply with the requirements of the subchapter if his or her home state does not qualify as a long-term care insurance partnership state. Specifically, §19.1023(e) requires a non-resident licensee in such a situation to either complete four hours of Department certified long-term care partnership continuing education in this state that meets the requirements of the subchapter or designate a home state that qualifies as a long-term care partnership insurance state and meet the requirements of adopted §19.1023(d). Lastly, adopted §19.1023(f) makes clear that licensees that may be exempt from continuing education requirements provided under §19.1004 are not exempt from the ongoing training requirements of adopted §19.1023, which the Department is requiring in the form of continuing education.
SUMMARY OF COMMENTS AND AGENCY RESPONSE. The Department did not receive any comments on the proposed amendments and new sections.
STATUTORY AUTHORITY. The amendments and new sections are adopted under the Insurance Code §§1651.104, 1651.105, 1651.107, and 36.001 and the Human Resources Code §32.105. The Insurance Code §1651.104 provides that the Commissioner, in consultation with the Texas Health and Human Services Commission (HHSC), shall adopt minimum standards for a long-term care benefit plan that may qualify as an approved plan under the partnership for long-term care program. The standards must be consistent with provisions governing the expansion of a state long-term care partnership program established under the federal Deficit Reduction Act of 2005 (DRA) (Pub. L. No. 109-171). Section 6021(a)(1)(A)(iii)(V) of the DRA requires the state Medicaid agency under section 1902(a)(5) to provide information and technical assistance to the state insurance department on the insurance department's role of assuring that any individual who sells a long-term care insurance policy under the partnership receives training and demonstrates evidence of an understanding of such policies and how they relate to other public and private coverage of long-term care. The Insurance Code §1651.105 requires that each individual who sells a long-term care benefit plan under the partnership for long-term care program complete training and demonstrate evidence of an understanding of these plans and how the plans relate to other public and private coverage of long-term care. Section 1651.107 provides that the Commissioner may adopt rules as necessary to implement the subchapter. The Human Resources Code §32.105 requires the HHSC to provide information and technical assistance to the Texas Department of Insurance regarding that Department's role in ensuring that each individual who sells a long-term care benefit plan under the partnership for long-term care program receives training and demonstrates evidence of an understanding of these plans as required by the Insurance Code §1651.105. The training must satisfy the training requirements imposed under the provisions governing the expansion of a state long-term care partnership program established under the federal DRA. The Insurance Code §36.001 provides that the Commissioner of Insurance may adopt any rules necessary and appropriate to implement the powers and duties of the Texas Department of Insurance under the Insurance Code and other laws of this state.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 16, 2008.
TRD-200803631
Gene C. Jarmon
General Counsel and Chief Clerk
Texas Department of Insurance
Effective date: August 5, 2008
Proposal publication date: March 21, 2008
For further information, please call: (512) 463-6327