[§431:10H-234]  Standards for benefit triggers.  (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 of the activities of daily living or the presence of cognitive impairment.

     (b)  Activities of daily living shall include at least the following as defined in section 431:10H-201 and the policy: bathing, continence, dressing, eating, toileting, and transferring.  Insurers may use activities of daily living to trigger covered benefits in addition to those contained in the preceding sentence as long as they are defined in the policy.

     (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 under subsections (a) and (b).

     (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.

     (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.

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

     (g)  The requirements set forth in this section shall be effective July 1, 2000, and shall apply as follows:

     (1)  Except as provided in paragraph (2), this section applies to a long-term care policy issued in this State after June 30, 2000;

     (2)  For certificates issued after June 30, 2000, under a group long-term care insurance policy as defined in paragraph (1) under the definition of "group long-term care insurance" in section 431:10H-104, which policy was in force on July 1, 2000, this section shall not apply. [L 1999, c 93, pt of §2]