N.Y. Comp. Codes R. & Regs. Tit. 11 § 363.6 - Rules relating to the content and sale of policy forms for family leave benefits coverage

(a) Except as provided in subdivision (b) of this section:

(1) every policy shall include coverage for both disability and family leave benefits;

(2) coverage for family leave benefits shall only be provided by rider to a group accident and health insurance policy providing disability benefits pursuant to Workers' Compensation Law Article 9; and

(3) coverage for family leave benefits shall renew or terminate as of the same renewal date or termination date of the policy providing disability benefits.

(b)

(1) A group accident and health insurance policy providing only family leave benefits coverage may be issued to an employer providing disability benefits pursuant to Article 9 of the Workers' Compensation Law in the manner authorized by Workers' Compensation Law section 211(3). A group accident and health insurance policy providing only family leave benefits coverage may also be issued to an entity that elects to become a covered employer pursuant to Workers' Compensation Law section 212-a.

(2) A group accident and health insurance policy providing only disability benefits coverage may be issued to an entity that elects to become a covered employer pursuant to Workers' Compensation Law section 212(2) for the purpose of providing disability benefits and not family leave benefits.

(c) A group accident and health insurance policy providing family leave benefits shall comply with the requirements of Workers' Compensation Law Article 9.

(d) The content and format of the rider providing family leave benefits coverage may be prescribed by the superintendent.

(e) A group accident and health insurance policy providing family leave benefits shall also comply with the requirements of Part 52 of this Title (Insurance Regulation 62) and the regulations promulgated by the chair in Parts 360, 361, and 380 of Title 12.

(f) The qualifying events for eligible family leave are set forth in Workers' Compensation Law section 201(15).

(g) Each policy shall provide that regardless of the policy's issue date or renewal date, an increase in family leave benefits pursuant to Workers' Compensation Law section 204(2)(a) shall be effective as of the date specified in such section. However, the benefit payable to an employee during a period of family leave shall be at the benefit amount and duration set forth in Workers' Compensation Law section 204(2)(a) that is in effect on the first day of family leave.

(h) Each policy shall provide that disability benefits pursuant to Workers' Compensation Law Article 9 and family leave benefits shall not be payable concurrently.

(i) Each policy shall provide that regardless of the policy's issue date or renewal date, the premium to be charged shall be based on the amount set by the superintendent for the applicable portion of the policy period.

(j) In accordance with Workers' Compensation Law section 212(4)(b), a sole proprietor, a member of a limited liability company, a member of a limited liability partnership, or other self-employed person may become a covered employer under Workers' Compensation Law Article 9 by complying with the provisions of Workers' Compensation Law section 212(1). A policy issued to such an employer on or before January 1, 2018 or within 26 weeks of when the employer first becomes a sole proprietor, a member of a limited liability company, a member of a limited liability partnership, or other self-employed person shall be issued at the applicable community rate for family leave benefits coverage. An issuer that issues a policy to such a sole proprietor, a member of a limited liability company, a member of a limited liability partnership, or other self-employed person after these time periods have passed shall subject the family leave benefits coverage to a waiting period of two years before such benefits may be payable. During the two year waiting period, the community rate for the family leave benefits coverage shall be payable.

(k) If an issuer opts to issue coverage to a sole proprietor with employees, a member of a limited liability company with employees, a member of a limited liability partnership with employees, or other self-employed person with employees, such policyholder shall be covered under the same policy that covers the policyholder's employees.

(l) Except as provided in subdivision (n) of this section, if an issuer elects to discontinue offering all coverage for disability and family leave benefits in one or more group sizes as referenced in subdivision (g)(1) of Section 363.5, then the issuer shall provide written notification of the proposed discontinuance to the superintendent at least 90 days prior to the date of discontinuance of such coverage. The written notification shall include the following information:

(1) the name of the issuer and the policy form numbers;

(2) an explanation of the reason for the discontinuance;

(3) whether the discontinuance will apply to policies issued to employers with one to 49 employees (small group), employers with 50 to 499 employees (medium group), employers with 500 or more employees (large group), or all employers regardless of group size;

(4) the date or dates that the issuer intends to mail or deliver notices of discontinuance to the covered employer, including a separate notice to employees to be distributed by the employer;

(5) for each group size as referenced in subdivision (g)(1) of section 363.5, the total number of groups and the total number of employees in each county impacted by the discontinuance;

(6) the intended discontinuance date and confirmation that the date is consistent with the terms of the policy being discontinued; and

(7) whether the discontinuance will be effectuated on each policy's renewal date.

(m) In addition to the notice required in subdivision (l) of this section, an issuer shall provide a written plan that is acceptable to the superintendent to minimize potential disruption in the marketplace as a result of the issuer's withdrawal from one or more group sizes as referenced in subdivision (g)(1) of Section 363.5.

(n) For an issuer that elects to discontinue offering coverage for disability benefits in this State for calendar year 2018, the notification to the superintendent required pursuant to subdivisions (l) and (m) of this section shall be provided to the superintendent by the later of July 1, 2017 or within 60 days of the date the superintendent publishes the community rate for premiums for family leave benefits coverage for the policy benefit period beginning on January 1, 2018.

(o) The sale or transfer of policies with disability and/or family leave benefits to another issuer shall be considered a discontinuance for the purposes of this section.

(p) Upon the approval of the superintendent and the chair, an issuer that discontinues offering all coverage for disability and family leave benefits in one or more group sizes as referenced in subdivision (g)(1) of section 363.5 in this State may re-enter such group size.

(q) Where a policyholder elects to provide additional or enhanced benefits beyond those specified in Workers' Compensation Law section 204(2), an issuer shall obtain from the prospective policyholder a certification that the policyholder will extend the protections of Workers' Compensation Law sections 203-b and 203-c for the additional or enhanced benefits. Such certification shall be included in the application form for the policy.

(r) Any additional or enhanced benefits for family leave benefits coverage beyond those specified in Workers' Compensation Law section 204(2) shall be set forth in the rider separately from the benefits specified in Workers' Compensation Law section 204(2), and shall comply with all additional guidance as issued by the Department on the subject.

(1) Additional or enhanced benefits shall be limited to an increased percentage in the weekly benefit amount and/or an increased duration of the benefit period specified in Workers' Compensation Law section 204(2).

(2) The application form for the policy shall affirmatively state that family leave benefits coverage is provided at the benefit amounts and duration required under Workers' Compensation Law section 204(2). Any additional or enhanced benefits must be elected separately on the application.

Notes

N.Y. Comp. Codes R. & Regs. Tit. 11 § 363.6

Adopted New York State Register May 31, 2017 /Volume XXXIX, Issue 22, eff. 5/31/2017