Volume 43 - Issue 26 - June 27, 2024
State of Kansas
Insurance Department
Permanent Administrative Regulations
Article 1. —General
40-1-36. Life and health insurance applications; underwriting; acquired immunodeficiency syndrome (AIDS); definitions. (a) As used in this regulation, each of the following terms shall have the meaning specified in this subsection:
(1) “Acquired immunodeficiency syndrome” and “AIDS” mean one or more opportunistic diseases that are at least moderately indicative of underlying cellular immunodeficiency, along with the absence of all known underlying causes of cellular immunodeficiency and all other causes of reduced resistance reported to be associated with at least one of those opportunistic diseases.
(2) “Adverse underwriting decisions” mean the actions described in K.S.A. 40-2,111(a), and amendments thereto.
(3) “Applicant” means the individual proposed for coverage.
(b) All individual and group applications for insurance that require health information or questions shall meet the following requirements:
(1) When an applicant is requested to take an HIV antibody test in connection with an application for insurance, the insurer shall perform the following:
(A) Obtain written informed consent from the applicant;
(B) reveal the use of the test to the applicant;
(C) (i) Provide the applicant with printed material before testing containing factual information describing AIDS, its causes, symptoms, the ways it is and can be spread, the tests used to detect the HIV antibody and the actions to take for a person whose test results are positive; or
(ii) arrange for the applicant to receive relevant counseling from a qualified practitioner who has had extensive training and experience in addressing the fears, questions, and concerns of persons tested for the HIV antibody;
(D) administer an initial test that meets the test protocol established by the food and drug administration of the federal department of health and human services;
(E) administer a second test, the immunoelectroprecipitate using disrupted whole virus antigen test (western blot), or any other confirmatory test approved by the food and drug administration of the federal department of health and human services in accordance with current centers for disease control and prevention guidelines and protocols, to substantiate an initial positive test result; and
(F) disclose the results of the testing in accordance with K.S.A. 40-2,112(b)(2) and (3), and amendments thereto.
(2) An insurer may ask diagnostic questions on each application for insurance.
(3) Each application question shall be worded in a manner designed to elicit specific medical information and not lifestyle, sexual orientation, or other inferential information.
(4) Application questions that are vague, subjective, unfairly discriminatory, or so technical as to inhibit a clear understanding by the applicant shall be prohibited.
(c) All underwriting decisions shall be based on individual review of one or a combination of the following categories of information:
(1) Specific health information furnished on the application;
(2) reports provided as a result of medical examinations performed at the insurer’s request; or
(3) medical record information obtained from the applicant’s health care providers.
(d) Adverse underwriting decisions shall not be based on less than conclusive responses to application questions.
(e) Each adverse underwriting decision shall be based on sound actuarial principles pursuant to K.S.A. 40-2,109, and amendments thereto. (Authorized by K.S.A. 40-103, 40-2404a; implementing K.S.A. 40-2,109, K.S.A. 2023 Supp. 40-2404; effective, T-88-35, Sept. 17, 1987; amended May 1, 1988; amended July 12, 2024.)
Article 2.—LIFE INSURANCE
40-2-31. Minimum requirements for viaticating a policy. (a) As used in this regulation, each of the following terms shall have the meaning specified in this subsection:
(1) “Insured” means the person covered under a policy being considered for viatication.
(2) “Life expectancy” means the average number of months that the insured can be expected to live as determined by the viatical settlement provider, as defined in K.S.A. 40-5002 and amendments thereto, considering medical records and appropriate experiential data.
(3) “Policy” has the meaning specified in K.S.A. 40-5002, and amendments thereto.
(4) “Viaticating a policy” means selling a policy to a viatical settlement provider pursuant to a viatical settlement contract.
(5) “Viator” has the meaning specified in K.S.A. 40-5002, and amendments thereto.
(b)(1) The viatical settlement provider shall apply the following schedule and pay the viator at least the minimum of one of the following, after deducting any outstanding loans against the policy:
(A) 80 percent of the remaining death benefit, if the insured has a life expectancy of less than six months;
(B) 70 percent of the remaining death benefit, if the insured has a life expectancy of at least six months but less than 12 months;
(C) 65 percent of the remaining death benefit, if the insured has a life expectancy of at least 12 months but less than 18 months; or
(D) 60 percent of the remaining death benefit, if the insured has a life expectancy of 18 months but less than 25 months.
(2) If the insured has a life expectancy of 25 months or more, the viatical settlement provider shall pay the viator the greater of the cash surrender value or the accelerated death benefit of the policy, after deducting any outstanding loans.
(3) Unless the cash surrender value is paid, any percentage or amount specified in this subsection may be reduced by five percent for viaticating a policy written by an insurer rated less than the highest four categories by a rating agency. (Authorized by K.S.A. 40-103, K.S.A. 40-5015; implementing K.S.A. 40-5015; effective July 12, 2024.)
Article 4.—ACCIDENT AND HEALTH INSURANCE
40-4-29a. (Authorized by K.S.A. 40-103 and 40-2257(i); implementing K.S.A. 40-2257; effective Jan. 12, 2007; amended Sept. 18, 2015; revoked July 12, 2024.)
Article 8.—EXCESS COVERAGE
40-8-7. Excess lines insurance; agents; submission of affidavit required. (a) The excess lines agent who actually places business with a non-admitted insurer shall file the affidavit and annual statement reporting forms prescribed by the commissioner. Each excess lines agent shall file the appropriate form or forms with the department, on or before March 1st of each year, and shall include a tax remittance in the amount of 3% of the gross premium for all policies written on risks that were placed during the preceding calendar year. No affidavit or annual statement reporting form is required if no business was placed by the excess lines agent during the preceding calendar year.
(1) “Gross premium” means the amount charged to the insured for the insurance procured. When an audit or gross receipts contract requires a deposit premium, the amount collected during the calendar year either as a deposit or partial payment shall be reported on the affidavit and annual statement reporting forms as gross premium for that calendar year. Gross premium shall not include the tax due on the premium nor shall that tax be charged to the insured unless specifically identified and provided for in the policy.
(2) When a policy is renewed or an adjustment, addition, or reduction is made on a risk previously placed, the excess lines agent shall make the appropriate adjusting entry on the annual statement reporting form.
(b) If the excess lines agent fails to submit a statement and pay the premium tax as required by subsection (a) of this regulation, an assessment of up to two times the amount of excess premium tax required by K.S.A. 40-246c, and amendments thereto, shall be collected by the commissioner. This subsection shall not apply under the following circumstances:
(1) If the required statement and excess premium tax payment is submitted on or before the 1st day of March of each year; or
(2) if the required statement and the excess premium tax payment is received by the commissioner before the 1st day of January of each year and the statement and premium include all transactions of the excess coverage licensee during the year. (Authorized by K.S.A. 40-103; implementing K.S.A. 40-246b and K.S.A. 2023 Supp. 40-246c; effective Jan. 1, 1966; amended Jan. 1, 1968; amended Jan. 1, 1970; amended Jan. 1, 1971; amended, E-76-29, June 19, 1975; amended May 1, 1976; amended May 1, 1979; amended, T-83-22, Aug. 11, 1982; amended May 1, 1983; amended May 1, 1984; amended May 1, 1986; amended May 1, 1987; amended, T-40-10-23-92, Oct. 23, 1992; amended Feb. 8, 1993; amended May 16, 1997; effective July 12, 2024.)
Vicki Schmidt
Insurance Commissioner
Doc. No. 052255
