U.S.C. Title 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

Sec.

9001.

Definitions.

9002.

Availability of insurance.

9003.

Contracting authority.

9004.

Financing.

9005.

Preemption.

9006.

Studies, reports, and audits.

9007.

Jurisdiction of courts.

9008.

Administrative functions.

9009.

Cost accounting standards.

§9001. Definitions

(D) an employee of a nonappropriated fund instrumentality of the Department of Defense described in section 2105(c); and

(A) any individual who would satisfy the requirements of paragraph (3) of section 8901 if, for purposes of such paragraph, the term “employee” were considered to have the meaning given to it under paragraph (1);

(i) satisfies all requirements for title to an annuity under subchapter III of chapter 83, chapter 84, or any other retirement system for employees of the Government (whether based on the service of such individual or otherwise), and files application therefor;

(iii) would not (but for this subparagraph) otherwise satisfy the requirements of this paragraph; and

(C) any former employee who, on the basis of his or her service, would meet all requirements for being considered an “annuitant” within the meaning of subchapter III of chapter 83, chapter 84, or any other retirement system for employees of the Government, but for the fact that such former employee has not attained the minimum age for title to annuity.

(3) Member of the uniformed services.—The term “member of the uniformed services” means a member of the uniformed services, other than a retired member of the uniformed services, who is—

(A) on active duty or full-time National Guard duty for a period of more than 30 days; or

(4) Retired member of the uniformed services.—The term “retired member of the uniformed services” means a member or former member of the uniformed services entitled to retired or retainer pay, and a member who has been transferred to the Retired Reserve and who would be entitled to retired pay under chapter 1223 of title 10 but for not having attained the age of 60 and who satisfies such eligibility requirements as the Office of Personnel Management prescribes under section 9008.

(5) Qualified relative.—The term “qualified relative” means each of the following:

(B) A parent, stepparent, or parent-in-law of an individual described in paragraph (1) or (3).

(C) A child (including an adopted child, a stepchild, or, to the extent the Office of Personnel Management by regulation provides, a foster child) of an individual described in paragraph (1), (2), (3), or (4), if such child is at least 18 years of age.

(D) An individual having such other relationship to an individual described in paragraph (1), (2), (3), or (4) as the Office may by regulation prescribe.

(6) Eligible individual.—The term “eligible individual” refers to an individual described in paragraph (1), (2), (3), (4), or (5).

(7) Qualified carrier.—The term “qualified carrier” means an insurance company (or consortium of insurance companies) that is licensed to issue long-term care insurance in all States, taking any subsidiaries of such a company into account (and, in the case of a consortium, considering the member companies and any subsidiaries thereof, collectively).

(9) Qualified long-term care insurance contract.—The term “qualified long-term care insurance contract” has the meaning given such term by section 7702B of the Internal Revenue Code of 1986.

(B) with respect to the Coast Guard when it is not operating as a service of the Navy, the Secretary of Homeland Security;

(C) with respect to the commissioned corps of the National Oceanic and Atmospheric Administration, the Secretary of Commerce; and

(D) with respect to the commissioned corps of the Public Health Service, the Secretary of Health and Human Services.

(Added Pub. L. 106–265, title I, §1002(a), Sept. 19, 2000, 114 Stat. 762; amended Pub. L. 107–104, §1, Dec. 27, 2001, 115 Stat. 1001; Pub. L. 107–107, div. A, title X, §1048(i)(6), Dec. 28, 2001, 115 Stat. 1229; Pub. L. 107–314, div. A, title XI, §1101(a), Dec. 2, 2002, 116 Stat. 2660; Pub. L. 108–7, div. C, title III, §138(a), Feb. 20, 2003, 117 Stat. 129; Pub. L. 108–136, div. A, title V, §561, Nov. 24, 2003, 117 Stat. 1482; Pub. L. 109–241, title IX, §902(a)(3), July 11, 2006, 120 Stat. 566; Pub. L. 109–356, title I, §117(a)(3), Oct. 16, 2006, 120 Stat. 2027.)

References in Text

Section 7702B of the Internal Revenue Code of 1986, referred to in par. (9), is classified to section 7702B of Title 26, Internal Revenue Code.

Amendments

Par. (10)(B). Pub. L. 109–241 substituted “Secretary of Homeland Security” for “Secretary of Transportation”.

2003—Par. (1). Pub. L. 108–136, §561(a), substituted a period for a comma at end of subpar. (D) and struck out concluding provisions which read: “but does not include an individual employed by the government of the District of Columbia (other than an employee of the District of Columbia Courts).”

Pub. L. 108–7 inserted “(other than an employee of the District of Columbia Courts)” before period at end of concluding provisions.

Par. (2)(A). Pub. L. 108–136, §561(d), struck out “of this subsection” after “paragraph (1)”.

Par. (4). Pub. L. 108–136, §561(c), substituted “and a member who has been transferred to the Retired Reserve and who would be entitled to retired pay under chapter 1223 of title 10 but for not having” for “including a member or former member retired under chapter 1223 of title 10 who has”.

2001—Par. (2). Pub. L. 107–104 amended heading and text of par. (2) generally. Prior to amendment, text read as follows: “The term ‘annuitant’ has the meaning such term would have under paragraph (3) of section 8901 if, for purposes of such paragraph, the term ‘employee’ were considered to have the meaning given to it under paragraph (1) of this subsection.”

Par. (3)(A). Pub. L. 107–107 substituted “or” for “and” after semicolon.

Effective Date of 2001 Amendment

Pub. L. 107–104, §3, Dec. 27, 2001, 115 Stat. 1002, provided that: “The amendments made by this Act [amending this section and section 9005 of this title] shall take effect as if included in the enactment of section 1002 of the Long-Term Care Security Act (Public Law 106–265; 114 Stat. 762).”

Effective Date

Pub. L. 106–265, title I, §1003, Sept. 19, 2000, 114 Stat. 770, provided that: “The Office of Personnel Management shall take such measures as may be necessary to ensure that long-term care insurance coverage under title 5, United States Code, as amended by this title [enacting this chapter], may be obtained in time to take effect not later than the first day of the first applicable pay period of the first fiscal year which begins after the end of the 18-month period beginning on the date of the enactment of this Act [Sept. 19, 2000].”

Short Title

Pub. L. 106–265, title I, §1001, Sept. 19, 2000, 114 Stat. 762, provided that: “This title [enacting this chapter] may be cited as the ‘Long-Term Care Security Act’.”

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

§9002. Availability of insurance

(a) In General.—The Office of Personnel Management shall establish and, in consultation with the appropriate Secretaries, administer a program through which an individual described in paragraph (1), (2), (3), (4), or (5) of section 9001 may obtain long-term care insurance coverage under this chapter for such individual.

(b) Discretionary Authority Regarding Nonappropriated Fund Instrumentalities.—The Secretary of Defense may determine that a nonappropriated fund instrumentality of the Department of Defense is covered under this chapter or is covered under an alternative long-term care insurance program.

(1) the only coverage provided is under qualified long-term care insurance contracts; and

(2) each insurance contract under which any such coverage is provided is issued by a qualified carrier.

(d) Documentation Requirement.—As a condition for obtaining long-term care insurance coverage under this chapter based on one's status as a qualified relative, an applicant shall provide documentation to demonstrate the relationship, as prescribed by the Office.

(1) Disqualifying condition.—Nothing in this chapter shall be considered to require that long-term care insurance coverage be made available in the case of any individual who would be eligible for benefits immediately.

(2) Spousal parity.—For the purpose of underwriting standards, a spouse of an individual described in paragraph (1), (2), (3), or (4) of section 9001 shall, as nearly as practicable, be treated like that individual.

(3) Guaranteed issue.—Nothing in this chapter shall be considered to require that long-term care insurance coverage be guaranteed to an eligible individual.

(4) Requirement that contract be fully insured.—In addition to the requirements otherwise applicable under section 9001(9), in order to be considered a qualified long-term care insurance contract for purposes of this chapter, a contract must be fully insured, whether through reinsurance with other companies or otherwise.

(5) Higher standards allowable.—Nothing in this chapter shall, in the case of an individual applying for long-term care insurance coverage under this chapter after the expiration of such individual's first opportunity to enroll, preclude the application of underwriting standards more stringent than those that would have applied if that opportunity had not yet expired.

(f) Guaranteed Renewability.—The benefits and coverage made available to eligible individuals under any insurance contract under this chapter shall be guaranteed renewable (as defined by section 7A(2) of the model regulations described in section 7702B(g)(2) of the Internal Revenue Code of 1986), including the right to have insurance remain in effect so long as premiums continue to be timely made. However, the authority to revise premiums under this chapter shall be available only on a class basis and only to the extent otherwise allowable under section 9003(b).

(Added Pub. L. 106–265, title I, §1002(a), Sept. 19, 2000, 114 Stat. 764; amended Pub. L. 107–314, div. A, title XI, §1101(b), Dec. 2, 2002, 116 Stat. 2660.)

References in Text

Section 7702B(g)(2) of the Internal Revenue Code of 1986, referred to in subsec. (f), is classified to section 7702B(g)(2) of Title 26, Internal Revenue Code.

Amendments

2002—Subsecs. (b) to (f). Pub. L. 107–314 added subsec. (b) and redesignated former subsecs. (b) to (e) as (c) to (f), respectively.

§9003. Contracting authority

(a) In General.—The Office of Personnel Management shall, without regard to section 6101(b) to (d) of title 41 or any other statute requiring competitive bidding, contract with one or more qualified carriers for a policy or policies of long-term care insurance. The Office shall ensure that each resulting contract (hereafter in this chapter referred to as a “master contract”) is awarded on the basis of contractor qualifications, price, and reasonable competition.

(A) a detailed statement of the benefits offered (including any maximums, limitations, exclusions, and other definitions of benefits);

(B) the premiums charged (including any limitations or other conditions on their subsequent adjustment);

(D) such other terms and conditions as may be mutually agreed to by the Office and the carrier involved, consistent with the requirements of this chapter.

(2) Premiums.—Premiums charged under each master contract entered into under this section shall reasonably and equitably reflect the cost of the benefits provided, as determined by the Office. The premiums shall not be adjusted during the term of the contract unless mutually agreed to by the Office and the carrier.

(3) Nonrenewability.—Master contracts under this chapter may not be made automatically renewable.

(1) In general.—Each master contract under this chapter shall require the carrier to agree—

(A) to provide payments or benefits to an eligible individual if such individual is entitled thereto under the terms of the contract; and

(B) with respect to disputes regarding claims for payments or benefits under the terms of the contract—

(i) to establish internal procedures designed to expeditiously resolve such disputes; and

(ii) to establish, for disputes not resolved through procedures under clause (i), procedures for one or more alternative means of dispute resolution involving independent third-party review under appropriate circumstances by entities mutually acceptable to the Office and the carrier.

(2) Eligibility.—A carrier's determination as to whether or not a particular individual is eligible to obtain long-term care insurance coverage under this chapter shall be subject to review only to the extent and in the manner provided in the applicable master contract.

(3) Other claims.—For purposes of applying chapter 71 of title 41 to disputes arising under this chapter between a carrier and the Office—

(A) the agency board having jurisdiction to decide an appeal relative to such a dispute shall be such board of contract appeals as the Director of the Office of Personnel Management shall specify in writing; and

(B) the district courts of the United States shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of any action described in section 7104(b)(1) of title 41 relative to such a dispute.

(4) Rule of construction.—Nothing in this chapter shall be considered to grant authority for the Office or a third-party reviewer to change the terms of any contract under this chapter.

(1) In general.—Each master contract under this chapter shall be for a term of 7 years, unless terminated earlier by the Office in accordance with the terms of such contract. However, the rights and responsibilities of the enrolled individual, the insurer, and the Office (or duly designated third-party administrator) under such contract shall continue with respect to such individual until the termination of coverage of the enrolled individual or the effective date of a successor contract thereto.

(A) Shorter duration.—In the case of a master contract entered into before the end of the period described in subparagraph (B), paragraph (1) shall be applied by substituting “ending on the last day of the 7-year period described in paragraph (2)(B)” for “of 7 years”.

(B) Definition.—The period described in this subparagraph is the 7-year period beginning on the earliest date as of which any long-term care insurance coverage under this chapter becomes effective.

(3) Congressional notification.—No later than 180 days after receiving the second report required under section 9006(c), the President (or his designee) shall submit to the Committees on Government Reform and on Armed Services of the House of Representatives and the Committees on Governmental Affairs and on Armed Services of the Senate, a written recommendation as to whether the program under this chapter should be continued without modification, terminated, or restructured. During the 180-day period following the date on which the President (or his designee) submits the recommendation required under the preceding sentence, the Office of Personnel Management may not take any steps to rebid or otherwise contract for any coverage to be available at any time following the expiration of the 7-year period described in paragraph (2)(B).

(4) Full portability.—Each master contract under this chapter shall include such provisions as may be necessary to ensure that, once an individual becomes duly enrolled, long-term care insurance coverage obtained by such individual pursuant to that enrollment shall not be terminated due to any change in status (such as separation from Government service or the uniformed services) or ceasing to meet the requirements for being considered a qualified relative (whether as a result of dissolution of marriage or otherwise).

(Added Pub. L. 106–265, title I, §1002(a), Sept. 19, 2000, 114 Stat. 764; amended Pub. L. 111–350, §5(a)(18), Jan. 4, 2011, 124 Stat. 3842.)

Amendments

2011—Subsec. (a). Pub. L. 111–350, §5(a)(18)(A), substituted “section 6101(b) to (d) of title 41” for “section 5 of title 41”.

Subsec. (c)(3). Pub. L. 111–350, §5(a)(18)(B), substituted “chapter 71 of title 41” for “the Contract Disputes Act of 1978” in introductory provisions.

Subsec. (c)(3)(A). Pub. L. 111–350, §5(a)(18)(C), struck out “(after appropriate arrangements, as described in section 8(c) of such Act)” after “specify in writing”.

Subsec. (c)(3)(B). Pub. L. 111–350, §5(a)(18)(D), substituted “section 7104(b)(1) of title 41” for “section 10(a)(1) of such Act”.

Change of Name

Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.

Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.

§9004. Financing

(a) In General.—Each eligible individual obtaining long-term care insurance coverage under this chapter shall be responsible for 100 percent of the premiums for such coverage.

(1) In general.—The amount necessary to pay the premiums for enrollment may—

(B) in the case of an annuitant, be withheld from the annuity of such annuitant;

(C) in the case of a member of the uniformed services described in section 9001(3), be withheld from the pay of such member; and

(D) in the case of a retired member of the uniformed services described in section 9001(4), be withheld from the retired pay or retainer pay payable to such member.

(2) Voluntary withholdings for qualified relatives.—Withholdings to pay the premiums for enrollment of a qualified relative may, upon election of the appropriate eligible individual (described in section 9001(1)–(4)), be withheld under paragraph (1) to the same extent and in the same manner as if enrollment were for such individual.

(d) Other Forms of Payment.—Any enrollee who does not elect to have premiums withheld under subsection (b) or whose pay, annuity, or retired or retainer pay (as referred to in subsection (b)(1)) is insufficient to cover the withholding required for enrollment (or who is not receiving any regular amounts from the Government, as referred to in subsection (b)(1), from which any such withholdings may be made, and whose premiums are not otherwise being provided for under subsection (b)(2)) shall pay an amount equal to the full amount of those charges directly to the carrier.

(e) Separate Accounting Requirement.—Each carrier participating under this chapter shall maintain records that permit it to account for all amounts received under this chapter (including investment earnings on those amounts) separate and apart from all other funds.

(A) In general.—The Employees’ Life Insurance Fund is available, without fiscal year limitation, for reasonable expenses incurred by the Office of Personnel Management in administering this chapter before the start of the 7-year period described in section 9003(d)(2)(B), including reasonable implementation costs.

(B) Reimbursement requirement.—Such Fund shall be reimbursed, before the end of the first year of that 7-year period, for all amounts obligated or expended under subparagraph (A) (including lost investment income). Such reimbursement shall be made by carriers, on a pro rata basis, in accordance with appropriate provisions which shall be included in master contracts under this chapter.

(A) In general.—There is hereby established in the Employees’ Life Insurance Fund a Long-Term Care Administrative Account, which shall be available to the Office, without fiscal year limitation, to defray reasonable expenses incurred by the Office in administering this chapter after the start of the 7-year period described in section 9003(d)(2)(B).

(B) Reimbursement requirement.—Each master contract under this chapter shall include appropriate provisions under which the carrier involved shall, during each year, make such periodic contributions to the Long-Term Care Administrative Account as necessary to ensure that the reasonable anticipated expenses of the Office in administering this chapter during such year (adjusted to reconcile for any earlier overestimates or underestimates under this subparagraph) are defrayed.

§9005. Preemption

(a) Contractual Provisions.—The terms of any contract under this chapter which relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to long-term care insurance or contracts.

(1) In general.—No tax, fee, or other monetary payment may be imposed or collected, directly or indirectly, by any State, the District of Columbia, or the Commonwealth of Puerto Rico, or by any political subdivision or other governmental authority thereof, on, or with respect to, any premium paid for an insurance policy under this chapter.

(2) Rule of construction.—Paragraph (1) shall not be construed to exempt any company or other entity issuing a policy of insurance under this chapter from the imposition, payment, or collection of a tax, fee, or other monetary payment on the net income or profit accruing to or realized by such entity from business conducted under this chapter, if that tax, fee, or payment is applicable to a broad range of business activity.

(Added Pub. L. 106–265, title I, §1002(a), Sept. 19, 2000, 114 Stat. 768; amended Pub. L. 107–104, §2, Dec. 27, 2001, 115 Stat. 1001.)

Amendments

2001—Pub. L. 107–104 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b).

Effective Date of 2001 Amendment

Amendment by Pub. L. 107–104 effective as if included in the enactment of section 1002 of Pub. L. 106–265, see section 3 of Pub. L. 107–104, set out as a note under section 9001 of this title.

§9006. Studies, reports, and audits

(a) Provisions Relating to Carriers.—Each master contract under this chapter shall contain provisions requiring the carrier—

(1) to furnish such reasonable reports as the Office of Personnel Management determines to be necessary to enable it to carry out its functions under this chapter; and

(2) to permit the Office and representatives of the Government Accountability Office to examine such records of the carrier as may be necessary to carry out the purposes of this chapter.

(b) Provisions Relating to Federal Agencies.—Each Federal agency shall keep such records, make such certifications, and furnish the Office, the carrier, or both, with such information and reports as the Office may require.

(c) Reports by the Government Accountability Office.—The Government Accountability Office shall prepare and submit to the President, the Office of Personnel Management, and each House of Congress, before the end of the third and fifth years during which the program under this chapter is in effect, a written report evaluating such program. Each such report shall include an analysis of the competitiveness of the program, as compared to both group and individual coverage generally available to individuals in the private insurance market. The Office shall cooperate with the Government Accountability Office to provide periodic evaluations of the program.

(Added Pub. L. 106–265, title I, §1002(a), Sept. 19, 2000, 114 Stat. 768; amended Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814.)

Amendments

2004—Subsec. (a)(2). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office”.

Subsec. (c). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office” in heading and two places in text.

§9007. Jurisdiction of courts

The district courts of the United States have original jurisdiction of a civil action or claim described in paragraph (1) or (2) of section 9003(c), after such administrative remedies as required under such paragraph (1) or (2) (as applicable) have been exhausted, but only to the extent judicial review is not precluded by any dispute resolution or other remedy under this chapter.

§9008. Administrative functions

(a) In General.—The Office of Personnel Management shall prescribe regulations necessary to carry out this chapter.

(b) Enrollment Periods.—The Office shall provide for periodic coordinated enrollment, promotion, and education efforts in consultation with the carriers.

(c) Consultation.—Any regulations necessary to effect the application and operation of this chapter with respect to an eligible individual described in paragraph (3) or (4) of section 9001, or a qualified relative thereof, shall be prescribed by the Office in consultation with the appropriate Secretary.

(d) Informed Decisionmaking.—The Office shall ensure that each eligible individual applying for long-term care insurance under this chapter is furnished the information necessary to enable that individual to evaluate the advantages and disadvantages of obtaining long-term care insurance under this chapter, including the following:

(1) The principal long-term care benefits and coverage available under this chapter, and how those benefits and coverage compare to the range of long-term care benefits and coverage otherwise generally available.

(2) Representative examples of the cost of long-term care, and the sufficiency of the benefits available under this chapter relative to those costs. The information under this paragraph shall also include—

(B) a comparison of the inflation-adjusted value of those benefits to the projected future costs of long-term care.

(3) Any rights individuals under this chapter may have to cancel coverage, and to receive a total or partial refund of premiums. The information under this paragraph shall also include—

(A) the projected number or percentage of individuals likely to fail to maintain their coverage (determined based on lapse rates experienced under similar group long-term care insurance programs and, when available, this chapter); and

(B)(i) a summary description of how and when premiums for long-term care insurance under this chapter may be raised;

(ii) the premium history during the last 10 years for each qualified carrier offering long-term care insurance under this chapter; and

(iii) if cost increases are anticipated, the projected premiums for a typical insured individual at various ages.

(4) The advantages and disadvantages of long-term care insurance generally, relative to other means of accumulating or otherwise acquiring the assets that may be needed to meet the costs of long-term care, such as through tax-qualified retirement programs or other investment vehicles.

§9009. Cost accounting standards

The cost accounting standards issued pursuant to section 1502(a) and (b) of title 41 shall not apply with respect to a long-term care insurance contract under this chapter.

(Added Pub. L. 106–265, title I, §1002(a), Sept. 19, 2000, 114 Stat. 769; amended Pub. L. 111–350, §5(a)(19), Jan. 4, 2011, 124 Stat. 3842.)

Amendments

2011—Pub. L. 111–350 substituted “section 1502(a) and (b) of title 41” for “section 26(f) of the Office of Federal Procurement Policy Act (41 U.S.C. 422(f))”.

CHAPTER 90—LONG-TERM CARE INSURANCE

§9001. Definitions

References in Text

Amendments

Effective Date of 2001 Amendment

Effective Date

Short Title

Transfer of Functions

§9002. Availability of insurance

References in Text

Amendments

§9003. Contracting authority

Amendments

Change of Name

§9004. Financing

§9005. Preemption

Amendments

Effective Date of 2001 Amendment

§9006. Studies, reports, and audits

Amendments

§9007. Jurisdiction of courts

§9008. Administrative functions

§9009. Cost accounting standards

Amendments