New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

George E. Pataki
Governor

Howard Mills
Superintendent

The Office of General Counsel issued the following opinion on November 15, 2006 representing the position of the New York State Insurance Department.

RE: Sale of Medicare Supplement Insurance by Licensed Insurance Brokers

Questions Presented:

1) Does Medicare supplement insurance, known as "Medigap," constitute accident and health insurance under New York State Insurance Law?

2) Does a licensed insurance broker have authority to place Medicare supplement insurance policies on behalf of an insured pursuant to the 2003 revision of N.Y. Ins. Law § 21041 (McKinney 2006)?

Conclusions:

1) Yes, pursuant to New York Insurance Law § 1113(a)(3) (McKinney 2006) and N.Y. Comp. Codes R. & Regs. tit. 11, § 52.11 (Regulation 62), Medigap policies constitute accident and health insurance.

2) Yes, pursuant to New York Insurance Law § 2104, a licensed insurance broker may place Medicare supplement insurance policies for an insured. However, brokers had authority to place such policies prior to the 2003 amendments.

Facts:

No specific facts were provided.

Analysis:

New York Ins. Law § 1113 (McKinney’s 2006) authorizes the various kinds of insurance policies that may be sold in New York and states in pertinent part:

(a) The kinds of insurance which may be authorized in this state, subject to other provisions of this chapter, and their scope, are set forth in the following paragraphs…

* * *

(3) "Accident and health insurance," means (i) insurance against death or personal injury by accident or by any specified kind or kinds of accident and insurance against sickness, ailment or bodily injury, including insurance providing disability benefits pursuant to article nine of the workers' compensation law, except as specified in item (ii) hereof; and (ii) non-cancellable disability insurance, meaning insurance against disability resulting from sickness, ailment or bodily injury (but excluding insurance solely against accidental injury) under any contract which does not give the insurer the option to cancel or otherwise terminate the contract at or after one year from its effective date or renewal date.

N.Y. Comp. Codes R. & Regs. tit. 11, § 52.11 (Regulation 62) provides the parameters for the sale of Medicare supplement insurance (or "Medigap") and states in pertinent part:

(a) Medicare supplement insurance is an individual or group policy or certificate of accident and health insurance which is advertised, marketed or designed primarily as a supplement to reimbursements under Medicare for the hospital, medical or surgical expenses of persons eligible for Medicare. This definition is applicable regardless of whether the policy form is labeled as Medicare supplement insurance (emphasis added).

Thus, according to the plain meaning of the statute and regulation, Medicare supplement insurance is a type of accident and health insurance. For the purposes of Regulation 62, accident and health insurance includes subscriber contracts issued by Article 43 corporations.

N.Y. Ins. Law § 2104 (McKinney’s 2006) allows for the licensing of insurance brokers and states in pertinent part:

(b)(1) Such license shall confer upon the licensee authority to act in this state as insurance broker, and upon every natural person named as sub-licensee in such license authority to act in this state as insurance broker in the name of and on behalf of such licensee, with respect to the following lines of authority:

(A) life insurance, variable life and variable annuity products, accident and health insurance and sickness or any other line of authority deemed to be similar by the superintendent, including for this purpose, health maintenance organization contracts and legal services insurance; or

(B) any and every line of authority, except life insurance and variable life and variable annuity products.

A licensed insurance broker under either paragraph (A) or (B) of § 2104(b)(1) may sell accident and health insurance as specifically stated in the statute. The revisions made to § 2104 in 2003 were made to conform to the Gramm-Leach-Bliley Act (GLBA). Although some language was stricken from § 2104 and other phrases were added, "accident and health insurance" was not among them.

For further information you may contact Associate Attorney Sally Geisel at the New York City office.


1   L.2003 c. 687 § 1.