The requirements of this section apply to all long-term care insurance policies issued on or after January 1, 1999.

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

2. B. Activities of daily living.

   (1) Activities of daily living shall include at least the following as defined in 13.10.15.8 NMAC and in the policy:

   (a) bathing;

   (b) continence;

   (c) dressing;

   (d) eating;

   (e) toileting; and

   (f) transferring.

   (2) Insurers may use activities of daily living to trigger covered benefits in addition to those contained in Paragraph (1) of Subsection B of this section as long as they are defined in the policy.

3. C. An insurer may use additional provisions for the determination of when benefits are payable under a policy or certificate; however the provisions shall not restrict, and are not in lieu of, the requirements contained in Subsections A and B of this section.

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

   (1) requiring the hands-on assistance of another person to perform the prescribed activities of daily living; or

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

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

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

   [1-1-99; A, 1-1-99; 13.10.15.44 NMAC - Rn, 13 NMAC 10.15.41, 1-1-04]