CHAPTER 20:06:10 ADVERTISEMENTS AND SOLICITATIONS OF HEALTH AND LIFE INSURANCE. 20:06:10:02 Advertisements and solicitations subject to regulations.

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1 CHAPTER 20:06:10 ADVERTISEMENTS AND SOLICITATIONS OF HEALTH AND LIFE INSURANCE Section 20:06:10:01 Definitions. 20:06:10:02 Advertisements and solicitations subject to regulations. 20:06:10: General requirements. 20:06:10:03 Method of disclosure of required information. 20:06:10:04 Form and content of health and life insurance advertisements and solicitations. 20:06:10:04.01 Form and content of life insurance advertisements and solicitations. 20:06:10:05 Advertisements or solicitations of benefits payable, losses covered, or premiums payable. 20:06:10:05.01 Health insurance advertisements or solicitations of benefits payable, losses covered, or premiums payable. 20:06:10:06 Exceptions, reductions, and limitations. 20:06:10:07 Preexisting conditions in health insurance policies. 20:06:10:08 Necessity for disclosing policy provisions relating to renewability, cancelability, and termination. 20:06:10:08.01 Health insurance advertisement or solicitation rate disclosures. 20:06:10:08.02 Health insurance advertisement or solicitation disclosure statements. 20:06:10:08.03 Short term major medical advertising disclosure. 20:06:10:09 Testimonials or endorsements by third parties. 20:06:10:10 Use of statistics. 20:06:10:11 Identification of plan or number of policies.

2 20:06:10:12 Disparaging comparisons and statements. 20:06:10:13 Jurisdictional licensing and status of insurer. 20:06:10:14 Identity of insurer and agent. 20:06:10:15 Group or quasi-group implications. 20:06:10:16 Introductory, initial, or special offers. 20:06:10:17 Statements about an insurer. 20:06:10:18 and 20:06:10:19 Repealed. 20:06:10:20 Penalty. 20:06:10:21 Disclosure requirements. 20:06:10:22 Equivalent level annual dividend of a life insurance policy. 20:06:10:23 Equivalent level death benefit of a life insurance policy. 20:06:10:24 Life insurance surrender cost index. 20:06:10:25 Life insurance net payment cost index. 20:06:10:26 Life insurance policy summary. 20:06:10:27 Life insurance policy summary requirements. 20:06:10:28 Failure to comply. 20:06:10:29 Effective date. 20:06:10:30 Life insurance buyer's guide. 20:06:10:01. Definitions. Terms used in this chapter are defined as follows: (1) "Advertisement," as defined in SDCL 58-33A-3; (2) "Buyer's guide," an explanation which accompanies a policy;

3 (3) "Cash dividend," the current illustrated dividend which can be applied toward payment of the gross premium; (3)(4)"Exception," a provision in a policy that eliminates or does not assume coverage for a specified hazard or risk; (5)"Generic name," a short title which is descriptive of the premium and benefit patterns of a policy or a rider; (5) (6) "Limitation," a provision which restricts coverage under the policy other than an exception or reduction. (2). (7)"Policy," a plan, certificate, contract, agreement, statement of coverage, rider, or endorsement which provides benefits or payments on an indemnity, reimbursement, service, or prepaid basis; (4) (8)"Reduction," a provision which reduces the amount of the benefit or payment or the period covered; Source: 4 SDR 6, effective August 9, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 15 SDR 143, effective March 29, 1989; 27 SDR 54, effective December 4, Law Implemented: SDCL , , , , 58-33A-3.

4 20:06:10:02. Advertisements and solicitations subject to regulations. This chapter applies to any health or life insurance advertisement or solicitation, unless otherwise indicated, intended for presentation, distribution, or dissemination in this state when the presentation, distribution, or dissemination is made either directly or indirectly by or on behalf of an insurer, agent, broker, or solicitor. Each insurer shall establish and maintain a system of control over the content, form, and method of dissemination of all advertisements and solicitations of its policies. The insurer is responsible for all advertisements or solicitations, regardless of who writes, creates, designs, or presents them. This chapter also applies to any solicitation, negotiation, or procurement of health or life insurance occurring within this state by an issuer of health or life insurance contracts, including fraternal benefit societies, with the exception of those contracts outlined in SDCL 58-33A-1. Source: 4 SDR 6, effective August 9, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 15 SDR 143, effective March 29, 1989; 27 SDR 54, effective December 4, Law Implemented: SDCL , , , , 58-33A-1, 58-33A-2. 20:06:10: General requirements. The following are general requirements for health and life insurance advertisements and solicitations:

5 (1) Each insurer must maintain at its home office or principal office a complete file containing one copy of each form authorized by the insurer for use pursuant to this chapter. Each authorized form must be kept in the file for five years following the date of its last authorized use; (2) In recommending the purchase of a policy to a consumer, an agent must determine at the time of sale that the placement of the policy is not inappropriate for the consumer. The agent shall determine the appropriateness of a recommended purchase of insurance by examination of the totality of the particular consumer's circumstances, including the following: costs; (a) The consumer's financial condition, i.e., if a person is on a fixed income, premium insured's finances; (b) The consumer's need for insurance at the time of sale, i.e., existing policies, (c) The values, benefits, and costs of the consumer's existing insurance program, if any, when compared to the values, benefits, and cost of the recommended policy or policies. Source: 6 SDR 38, effective April 15, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 15 SDR 143, effective March 29, 1989; 27 SDR 54, effective December 4, General Authority: SDCL 58-17A-2, 58-33A Law Implemented: SDCL 58-17A-2, , , , , , 58-

6 20:06:10:03. Method of disclosure of required information. All information required to be disclosed by this chapter must be set out conspicuously and in close conjunction with the statements to which the information relates or under appropriate prominent captions. The information may not be minimized, rendered obscure, presented in an ambiguous fashion, or intermingled with the context of the advertisement so as to confuse or mislead. If an advertisement or solicitation refers to an insurer, it shall clearly and prominently provide the full name of the insurance company being advertised or solicited. If an advertisement refers to a policy, it shall clearly and prominently describe the type of policy discussed or advertised. The name, title, or description of a policy may not deceive or mislead a person as to the true nature of the policy or the benefits provided. Source: 4 SDR 6, effective August 9, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 15 SDR 143, effective March 29, 1989; 27 SDR 54, effective December 4, Law Implemented: SDCL , , , 58-33A-8, 58-33A :06:10:04. Form and content of health and life insurance advertisements or solicitations. Advertisements and solicitations must be truthful and not misleading in fact or by implication. Words or phrases, the meaning of which is clear only by implication or by familiarity with insurance terminology, may not be used.

7 A display of guaranteed and nonguaranteed benefits in a an advertisement or solicitation for a life insurance policy must be identified and must be placed adjacent to each other. Source: 4 SDR 6, effective August 9, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 15 SDR 143, effective March 29, 1989; 27 SDR 54, effective December 4, Law Implemented: SDCL , ; 58-33A-8, 58-33A :06:10: Form and content of life insurance advertisements and solicitations. In addition to the information required in 20:06:10:04, the form and content requirements of life insurance advertisements and solicitations are as follows: (1) The terms "investment plan," "founder's plan," "charter plan," "expansion plan," "profit," "profit sharing," "interest plan," "savings," "savings plan," "vanishing," "vanishing premiums," "vanishing payments," or other similar terms may not be used in connection with a life insurance policy in a context or under such circumstances or conditions that they mislead or tend to mislead a purchaser or prospective purchaser of the policy into believing that the purchaser or prospective purchaser will receive, or that it is possible that the purchaser or prospective purchaser will receive, some benefit not available to other persons or something other than a policy; (2) The terms "financial planner," "investment advisor," "financial consultant," or "financial counseling," or other similar terms may not be used to imply that an insurance

8 company or its agents are engaged in an advisory business in which compensation is unrelated to sales unless that is actually the case; guaranteed; (3) A reference to policy dividends must include a statement that dividends are not (4) An advertisement or solicitation which does not recognize the time value of money through the use of appropriate interest adjustments may not be used for comparing the cost of two or more life insurance policies. An advertisement or solicitation which does not recognize the time value of money may be used for the purpose of demonstrating the cash flow pattern of a policy if the presentation is accompanied by a clear and prominent statement disclosing that the presentation does not recognize that a dollar beginning to earn interest at some time in the future will have less value than a dollar beginning to earn interest today; (5) If life insurance cost indexes are used, an explanation must be included to the effect that the indexes are useful only for the comparison of the relative costs of similar policies. A life insurance cost index which gives dividends or an equivalent level annual dividend must be accompanied by a clear and prominent statement disclosing that it is based on the company's current dividend scale and is not guaranteed; and (6) A reference to a policy with variable premiums must include a clear and prominent statement disclosing the maximum annual premium and the minimum annual premium. Source: 15 SDR 143, effective March 29, 1989; 27 SDR 54, effective December 4, 2000.

9 Law Implemented: SDCL , , , 58-33A-8, 58-33A :06:10:05. Advertisements or solicitations of benefits payable, losses covered, or premiums payable. No health or life insurance advertisement or solicitation may omit information or use words, phrases, statements, references, or illustrations if the omission of such information or use of such words, phrases, statements, references, or illustrations misleads or deceives or tends to mislead or deceive purchasers or prospective purchasers as to the nature or extent of a policy benefit payable, loss covered, or premium payable. The fact that the policy offered is made available to a prospective insurer for inspection prior to consummation of the sale or that an offer is made to refund the premium if the purchaser is not satisfied does not remedy omissions or deceptive or misleading statements. An advertisement or solicitation of a direct response health or life insurance product may not imply that because "no insurance agent will call and no commissions will be paid to agents," it is "a low cost plan" or use similar words or phrases. Source: 4 SDR 6, effective August 9, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 15 SDR 143, effective March 29, 1989; 27 SDR 54, effective December 4, Law Implemented: SDCL , , , 58-33A-8, 58-33A-10.

10 20:06:10: Health insurance advertisements or solicitations of benefits payable, losses covered, or premiums payable. In addition to the requirements of 20:06:10:05, health insurance advertisements or solicitations must meet the following requirements: (1) No advertisement or solicitation may contain or use words or phrases such as "all," "full," "complete," "comprehensive," "unlimited," "up to," "as high as," "this policy will help pay your hospital and surgical bills," "this policy will help fill some of the gaps that Medicare and your present insurance leave out," "this policy will help to replace your income (when used to express loss of time benefits)," or similar words and phrases in a manner which exaggerates any benefits beyond the terms of the policy; (2) An advertisement or solicitation may not contain descriptions of a policy limitation, exception, or reduction worded in a positive manner to imply that it is a benefit, such as describing a waiting period as a "benefit builder" or stating "even preexisting conditions are covered after two years." Words and phrases used in an advertisement to describe such policy limitations, exceptions, and reductions must fairly and accurately describe the negative features of such limitations, exceptions, and reductions of the policy offered; (3) No advertisements or solicitation of a benefit for which payment is conditional on confinement in a hospital or similar facility may use words or phrases such as "tax free," "extra cash," extra income," "extra pay," or substantially similar words or phrases which may mislead the public into believing that the policy advertised will, in some way, enable them to make a profit from being hospitalized;

11 (4) No advertisement or solicitation of a benefit for confinement in a hospital or similar facility may advertise that the amount of the benefit is payable monthly or weekly when, in fact, the amount of the benefit payable is calculated daily and is based on the number of days of confinement, unless the monthly or weekly benefit amount is immediately adjacent to and in equal prominence with the daily benefit amount. If the policy contains a limit on the number of days of coverage provided, the limit must clearly and prominently appear in the advertisement or solicitation; (5) No advertisement or solicitation of a policy covering only one disease or a list of specified diseases may imply coverage beyond the terms of the policy or imply that current coverage will not indemnify the specific disease so covered. Synonymous terms may not be used to refer to any disease so as to imply broader coverage than is the fact; (6) An advertisement or solicitation for a policy providing benefits for specified illnesses only, such as cancer, or for specified accidents only, such as automobile accidents, must clearly and conspicuously in prominent type state the limited nature of the policy. The statement must be worded in language identical to or substantially similar to the following: "THIS IS A LIMITED POLICY"; "THIS IS A CANCER ONLY POLICY"; "THIS IS AN AUTOMOBILE ACCIDENT ONLY POLICY." Failure to comply with any of the provisions of this section creates a presumption that an advertisement or solicitation is deceptive, misrepresentative, or misleading. Source: 15 SDR 143, effective March 29, 1989; 27 SDR 54, effective December 4, 2000.

12 Law Implemented: SDCL , , , 58-33A-8, 58-33A :06:10:06. Exceptions, reductions, and limitations. The exceptions, reductions, and limitations permitted are: (1) When an advertisement or solicitation refers to either a dollar amount, or a period of time for which any benefit is payable, or the cost of the policy, or specific policy benefit, or the loss for which such benefit is payable, it shall also disclose those exceptions, reductions, and limitations affecting the basic provisions of the policy without which the advertisement would have the capacity or tendency to mislead or deceive; (2) When If a policy contains a waiting, elimination, probationary, or similar time period between the effective date of the policy and the effective date of coverage under the policy or a time period between the date a loss occurs and the date benefits begin to accrue for such loss, an advertisement or solicitation which is subject to the requirements of 20:06:10:06 shall disclose the existence of such periods; (3) An advertisement or solicitation may not use the words "only", "just", "merely", "minimum" or similar words or phrases to describe the applicability of any exceptions and reductions, such as: "This policy is subject to the following minimum exceptions and reductions".: (4) A solicitation may not contain descriptions of a policy limitation, exception, or reduction worded in a positive manner to imply that it is a benefit, such as describing a

13 waiting period as a "benefit builder" or stating "even preexisting conditions are covered after two years." Words and phrases used in a solicitation to describe such policy limitations, exceptions, and reductions must fairly and accurately describe the negative features of such limitations, exceptions, and reductions of the policy offered. Source: 4 SDR 6, effective August 9, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 27 SDR 54, effective December 4, Law Implemented: SDCL , , , 58-33A-8, 58-33A :06:10:07. Preexisting conditions in health insurance policies. Preexisting conditions in health insurance policies are treated as follows: (1) An advertisement or solicitation of health insurance which is subject to the requirements of this chapter shall, in negative terms, disclose the extent to which any loss is not covered if the cause of the loss is traceable to a condition existing prior to the effective date of the policy. The term "preexisting condition" without a definition or description may not be used; (2) If a policy does not cover losses resulting from preexisting conditions, no advertisement or solicitation of the policy may state or imply that the applicant's physical condition or medical history will not affect the issuance of the policy or payment of a claim under it. This subdivision prohibits the use of the phrase "no medical examination required" and similar phrases, but does not prohibit explaining "automatic issue." If an insurer requires

14 a medical examination for a specified policy, the advertisement or solicitation must disclose that a medical examination is required; (3) If an advertisement or solicitation contains an application form to be completed by the applicant and returned by mail for a direct response insurance product, the application form must contain a question or statement which reflects the preexisting condition provisions of the policy immediately preceding the blank space for the applicant's signature. The question or statement must be substantially as follows: (a) "Do you understand that this policy will not pay benefits during the first year(s) after the issue date for a preexisting medical condition which you now have or have had in the past?" YES; or (b) "I understand that the policy applied for will not pay benefits for any loss incurred during the first year(s) after the issue date because of a preexisting medical condition which I now have or have had in the past." Source: 4 SDR 6, effective August 9, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 15 SDR 143, effective March 29, 1989; 27 SDR 54, effective December 4, Law Implemented: SDCL , , ; 58-33A-8, 58-33A-10.

15 20:06:10:08. Necessity for disclosing policy provisions relating to renewability, cancelability, and termination. When an advertisement or solicitation refers to either a dollar amount or a period of time for which any benefit is payable, or the cost of the policy, or specific policy benefit, or the loss for which such benefit is payable, it shall disclose the provisions relating to renewability, cancelability, and termination and any modification of benefits, losses covered, or premiums because of age or for other reasons general policy exceptions, reducations, and limitations, in a manner which does not minimize or render obscure the qualifying conditions. Source: 4 SDR 6, effective August 9, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 27 SDR 54, effective December 4, Law Implemented: SDCL , , , 58-33A-8, 58-33A :06:10: Health insurance advertisement rate disclosures. Unless the disclosure as required by 20:06:10:08.02 is provided, no individual or group health insurance policy or certificate may in its advertisements or solicitations include statements that directly or indirectly indicate that: (1) Premiums or rates do not increase with age; (2) Premiums or rates do not increase because of health conditions; or

16 (3) An insured will not be singled out for a rate or premium increase. Policies for which no rate increase may be applied for any reason are exempt from the provisions of this section. Source: 32 SDR 128, effective January 29, Law Implemented: SDCL , , 58-33A-2, 58-33A-8. 20:06:10: Health insurance advertisement or solicitation disclosure statements. Any health insurance advertisement or solicitation that includes a statement for which disclosure is required pursuant to 20:06:10:08.01 must contain in close proximity to any such statement and in an at least as conspicuous a form as the statement itself, the following disclosure or an alternative as may be approved by the director: Premiums or rates may increase for other reasons such as an increase applicable to all persons covered under this type of policy or certificate in this state.

17 Failure to comply with any provision of this section creates a presumption that an advertisement or solicitation is deceptive, misrepresentative, or misleading. Source: 32 SDR 128, effective January 29, General Authority: SDCL 58-33A-7(13)(14)(15). Law Implemented: SDCL , , 58-33A-2, 58-33A-8. 20:06:10: Short term major medical advertising disclosure. No advertisement or solicitation of short term major medical insurance may be used in this state unless the following disclosure statement in 20:06:14:04.01 is prominently displayed in that advertisement or solicitation. This short term major medical policy is nonrenewable. No short term major medical policy may be sold in this state unless the following separate disclosure in bold 14 point type is signed and acknowledged by the applicant: "This short term major medical policy is nonrenewable. This policy could cause me to lose valuable rights under the Health Insurance Portability and Accountability Act. I understand that if I purchase this policy and become seriously ill or disabled I would be ineligible for the risk pool and could be uninsurable."

18 If the application is taken by an agent, the agent is responsible for forwarding this signed disclosure to the insurer. For direct marketed solicitations, the insurer must provide this disclosure with the application. No insurer may issue a short term major medical policy unless a signed disclosure complaint with this section is received. If the transaction involves a replacement, the agent or, if forwarded by the agent to the insurer, the insurer must keep documentation in accordance with SDCL that subdivision 20:06:14:03(7) 20:06:10:08.02 has been complied with. Source: 33 SDR 107, effective December 26, General Authority: SDCL 58-33A-7(14). Law Implemented: SDCL , 58-33A-2, 58-33A-8, 58-33A :06:10:09. Testimonials or endorsements by third parties. Requirements for testimonials or endorsements by third parties are as follows: (1) Testimonials used in advertisements or solicitations must be genuine, represent the current opinion of the author, be applicable to the policy advertised, and be accurately reproduced. The insurer, in using a testimonial, makes as its own all of the statements contained in it. The advertisement, including the testimonial, is subject to all of the provisions of this chapter;

19 (2) If the person making a testimonial, an endorsement, or an appraisal has a financial interest in the insurer or a related entity as a stockholder, director, officer, employee, or otherwise, that fact must be disclosed in the advertisement or solicitation. If a person is compensated for making a testimonial, endorsement, or appraisal, that fact must be disclosed in the advertisement or solicitation by language substantially as follows: "Paid Endorsement." This section does not require disclosure of union scale wages required by union rules if the payment is actually made at the union scale rate for television or radio performances. The payment of substantial amounts, directly or indirectly, for "travel and entertainment" for filming or recording of television or radio advertisements remove the filming or recording from the category of an unsolicited testimonial and require disclosure of the compensation; (3) An advertisement or solicitation may not state or imply that an insurer or a policy has been approved or endorsed by an individual, group of individuals, society, association, or other organizations unless that is the fact and unless any proprietary relationship between an organization and the insurer is disclosed. If the entity making the endorsement or testimonial has been formed by the insurer or is owned or controlled by the insurer or the person or persons who own or control the insurer, that fact must be disclosed in the advertisement or solicitation; (4) If a testimonial refers to benefits received under a policy, the specific claim data, including claim number, date of loss, and other pertinent information must be retained by the insurer for inspection for three five years or until the filing of the next regular report on examination of the insurer, whichever is longer. Source: 4 SDR 6, effective August 9, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 15 SDR 143, effective March 29, 1989; 27 SDR 54, effective December 4, 2000.

20 33A-10. Law Implemented: SDCL , , , , , 58-33A-8, 58-20:06:10:10. Use of statistics. Statistics shall be used as follows: (1) An advertisement or solicitation relating to the dollar amounts of claims paid, the number of persons insured, or similar statistical information relating to any insurer or policy may not use irrelevant facts, and may not be used unless it accurately reflects all of the relevant facts. Such an advertisement or solicitation may not imply that such statistics are derived from the policy advertised unless such is the fact, and when applicable to other policies or plans shall specifically so state; (2) An advertisement or solicitation may not represent or imply that claim settlements by the insurer are "liberal" or "generous", or use words of similar import, or that claim settlements are or will be beyond the actual terms of the contract. An unusual amount paid for a unique claim for the policy advertised is misleading and may not be used; (3) The source of any statistics used in an advertisement or solicitation shall be identified in such advertisement or solicitation. Source: 4 SDR 6, effective August 9, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 27 SDR 54, effective December 4, 2000.

21 Law Implemented: SDCL , , , 58-33A-8, 58-33A :06:10:11. Identification of plan or number of policies. When a choice of the amount of benefits is referred to, an advertisement or solicitation shall disclose that the amount of benefits provided depends upon the plan selected and that the premium will vary with the amount of the benefits selected. When an advertisement or solicitation refers to various benefits which may be contained in two or more policies, other than group master policies, the advertisement or solicitation shall disclose that such benefits are provided only through a combination of such policies. Source: 4 SDR 6, effective August 9, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 27 SDR 54, effective December 4, Law Implemented: SDCL , , , 58-33A-8, 58-33A :06:10:12. Disparaging comparisons and statements. An advertisement or solicitation may not directly or indirectly make unfair or incomplete comparisons of policies or benefits or comparisons of noncomparable policies of other insurers, and may not disparage

22 competitors, their policies, services or business methods, and may not disparage or unfairly minimize competing methods of marketing insurance. Source: 4 SDR 6, effective August 9, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 27 SDR 54, effective December 4, Law Implemented: SDCL , , , , 58-33A-8, 58-33A :06:10:14. Identity of insurer and agent. Health and life insurers or agents must be identified in advertisements or solicitations as follows: (1) The name of the actual insurer or the agent, if any, and the form number of policies specifically advertised must be clearly identified in all advertisements or solicitation. An advertisement or solicitation may not use a trade name, insurance group designation, name of the parent company of the insurer, name of a particular division of the insurer, service mark, slogan, symbol, or other device which would mislead or deceive or tend to mislead or deceive as to the true identity of the insurer; (2) No advertisement or solicitation may use any combination of words, symbols, or physical materials which by their content, phraseology, shape, color, or other characteristics are so similar to combinations of words, symbols, or physical materials used by agencies of the federal government, this state, or local government or confuse or mislead prospective insureds

23 into believing that the advertisement or solicitation is in some manner connected with an agency of local government, the state, or the federal government.; (3) An agent shall inform the prospective purchaser, before beginning a health or life insurance sales presentation, that the agent is acting as a health or life insurance agent and shall identify, in writing, the agent and the complete name of the insurer which the agent is representing. An agent's business card is acceptable if it complies with this subdivision and this chapter. In sales situations in which an agent is not involved, the insurer shall inform the prospective purchaser of its complete name in writing; (4) An advertisement or solicitation may not create the impression directly or indirectly that the insurer, its financial condition or status, or the payment of its claims or the merits, desirability, or advisability of its policy forms or kinds of plans of insurance are approved, endorsed, or accredited by a division or agency of a municipality, the state, or the federal government. Source: 4 SDR 6, effective August 9, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 15 SDR 143, effective March 28, 1989; 27 SDR 54, effective December 4, Law Implemented: SDCL , , , 58-33A-8, 58-33A :06:10:15. Group or quasi-group implications. An advertisement or solicitation of a particular policy may not state or imply that prospective insureds become group or quasi-group

24 members covered under a group policy and as such enjoy special rates or underwriting privileges, unless such is the fact. Source: 4 SDR 6, effective August 9, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 27 SDR 54, effective December 4, Law Implemented: SDCL , , , , 58-33A-8, 58-33A :06:10:16. Introductory, initial, or special offers. Requirements for introductory, initial, or special offers for health and life insurance are as follows: (1) An advertisement or solicitation of an individual policy may not directly or by implication represent that a contract or combination of contracts is an introductory, initial, or special offer; that applicants will receive substantial advantages not available at a later date; or that the offer is available only to a specified group of individuals, unless that is the fact. An advertisement or solicitation may not contain words describing an enrollment period as "special" or "limited" or use similar words or phrases when the insurer uses such enrollment periods as the usual method of advertising health or life insurance; (2) An advertisement or solicitation may not state or imply that only a specific number of policies will be sold or that a time is fixed for the discontinuance of the sale of the particular policy advertised because of special advantages available in the policy unless that is the fact;

25 (3) Different terms of renewability, an increase or decrease in the dollar amounts of benefits, or an increase or decrease in an elimination period for another policy are not sufficient to constitute the product being offered as a different product eligible for concurrent or overlapping enrollment periods; (4) An advertisement or solicitation may not offer a policy which utilizes a reduced initial premium rate in a manner which overemphasizes the availability and the amount of the initial reduced premium. If an insurer charges an initial premium that differs in amount from the amount of the renewal premium payable on the same mode, the advertisement or solicitation may not display the amount of the reduced initial premium either more frequently or more prominently than the renewal premium, and both the initial reduced premium and the renewal premium must be stated in juxtaposition in each portion of the advertisement or solicitation where the initial reduced premium appears; (5) Health advertisements or solicitation may not include special awards, such as a "safe driver's award," in connection with advertisements or solicitation of accident or accident and sickness insurance. Source: 4 SDR 6, effective August 9, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 15 SDR 143, effective March 29, 1989; 27 SDR 54, effective December 4, Law Implemented: SDCL , , , 58-33A-8, 58-33A-10.

26 20:06:10:17. Statements about an insurer. An advertisement or solicitation may not contain statements which are untrue in fact, or by implication misleading, with respect to the assets, corporate structure, financial standing, age, or relative position of the insurer in the insurance business. An advertisement or solicitation may not contain a recommendation by a commercial rating system unless it clearly indicates the purpose of the recommendation and the limitations of the scope and extent of the recommendation. Source: 4 SDR 6, effective August 9, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 27 SDR 54, effective December 4, Law Implemented: SDCL , , , 58-33A-8, 58-33A :06:10:20. Penalty. Any insurer failing to comply with the requirements of this chapter shall file for approval, prior to its use, any advertisement or solicitation used in connection with the solicitation of a contract of insurance in the state of South Dakota. The standard for approval is this chapter. Unless disapproved within 30 days, the filing shall be deemed approved. Source: 4 SDR 6, effective August 9, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 27 SDR 54, effective December 4, 2000.

27 Law Implemented: SDCL l, , , , , , , 58-33A-11, 58-33A :06:10:21. Disclosure requirements. The disclosure requirements for life insurance policies are as follows: (1) The buyer s guide and any policy summary, shall be provided either prior to accepting an applicant s initial premium or premium deposit, or be delivered with the policy or prior to delivery of the policy. The policy summary must be provided to prospective purchasers only where the insurer has identified the policy form as one that will not be marketed with an illustration. The policy summary shall show guarantees only; and (2) If a solicitation refers to either a dollar amount or a period of time for which a benefit is payable, to the cost of the policy, to a specific policy benefit, or to the loss for which the benefit is payable, it must disclose the provisions relating to renewal, cancellation, termination and modification of benefits; losses covered; or premiums, because of age or for other reasons in a manner which does not minimize or render obscure the qualifying conditions. Source: Law Implemented: SDCL , , :06:10:22. Equivalent level annual dividend of a life insurance policy. The equivalent level annual dividend of a life insurance policy shall be calculated as follows:

28 (1) Accumulate the annual cash dividends at five percent interest compounded annually to the end of the tenth and twentieth policy years; (2) Divide each accumulation in subdivision 20:06:10:22(1) by an interest factor that converts it into one equivalent level annual amount that, if paid at the beginning of each year, would accrue to the values in subdivision 20:06:10:22(1) over 10 or 20 years. If the period is 10 years, the factor is ; and if the period is 20 years, the factor is ; and (3) Divide the results of subdivision 20:06:10:22(2) by the number of thousands of the equivalent level death benefit to arrive at the equivalent level annual dividend. Source: Law Implemented: SDCL , :06:10:23. Equivalent level death benefit of a life insurance policy. The equivalent level death benefit for a life insurance policy or term life insurance rider shall be calculated as follows: (1) Accumulate the guaranteed amount payable upon death, regardless of the cause of death, at the beginning of each policy year for 10 and 20 years at five percent interest compounded annually to the end of the tenth and twentieth policy years respectively; and

29 (2) Divide each accumulation of subdivision 20:06:14:06(1) by an interest factor that converts it into one equivalent level annual amount that, if paid at the beginning of each year, would accrue to the value in subdivision 20:06:10:23(1) over 10 or 20 years. If the period is 10 years, the factor is ; and if the period is 20 years, the factor is Source: Law Implemented: SDCL , :06:10:24. Life insurance surrender cost index. The life insurance surrender cost index shall be calculated as follows: (1) Determine any guaranteed cash surrender value available at the end of the tenth and twentieth policy years; (2) For participating policies, add any terminal dividend payable upon surrender to the accumulation of the annual cash dividends at 5 percent interest compounded annually to the end of the period selected and add this sum to the amount determined in subdivision 20:06:10:24(1); (3) Divide the result of subdivision 20:06:10:24(2) {subdivision 20:06:10:24(1) for guaranteed cost policies} by an interest factor that converts it into an equivalent level annual amount that, if paid at the beginning of each year, would accrue to the value in subdivision

30 20:06:10:2(2) {subdivision 20:06:10:24(1) for guaranteed cost policies} over 10 or 20 years. If the period is 10 years, the factor is and if the period is 20 years, the factor is ; (4) Determine the equivalent level premium by accumulating each annual premium payable for the basic policy or rider at 5 percent interest compounded annually to the end of 10 or 20 years and dividing the results by or respectively. This amount is the annual premium payable for a level premium plan; and (5) Subtract the result of subdivision 20:06:10:24(3) from subdivision 20:06:10:24(4); (6) Divide the results of subdivision 20:06:10:24(5) by the number of thousands of the equivalent level death benefit to arrive at the life insurance surrender cost index. Source: Law Implemented: SDCL , :06:10:25. Life insurance net payment cost index. The net payment cost index is calculated in the same manner as the comparable life insurance surrender cost index except that the cash surrender value and any terminal dividend are set at zero. Source:

31 Law Implemented: SDCL , :06:10:26. Life insurance policy summary. The life insurance policy summary must contain, but is not limited to, the following: (1) A prominently placed title as follows:statement OF POLICY COST AND BENEFIT INFORMATION; (2) The name and address of the insurance agent, or, if no agent is involved, a statement of the inquiry procedure to be followed; (3) The full name and home office or administrative office address of the company which writes the life insurance policy; (4) The generic name of the basic policy and each rider; (5) A clear illustration of the premium and benefit patterns which contains the following applicable amounts in total, not on a per thousand or per unit basis, for the first five policy years and representative policy years thereafter including, but not limited to, the years for which life insurance cost indexes are displayed and at least one age from 60 through 65 or policy maturity, whichever is earlier: (a) The annual premium for the basic policy;

32 (b) The annual premium for each optional rider; (c) The guaranteed amount payable, at the beginning of the policy year, upon death for any cause other than suicide or any other specifically enumerated exclusion, which is provided by the basic policy and each optional rider. The benefits provided under the basic policy and each rider must be shown separately; (d) The total guaranteed cash surrender values at the end of the year with values shown separately for the basic policy and each rider; (e) The cash dividends payable at the end of the year with values shown separately for the basic policy and each rider. Dividends need not be displayed beyond the twentieth policy year; (f) The guaranteed endowment amounts payable under the policy which are not included under guaranteed cash surrender values in subsection 20:06:10:25(5)(d); (6) The effective policy loan annual percentage interest rate, if the policy contains this provision, specifying whether this rate is applied in advance or in arrears. If the policy loan interest rate is variable, the policy summary must include the maximum annual percentage rate; (7) Life insurance cost indexes for 10 and 20 years but in no case beyond the premium paying period. Separate indexes must be displayed for the basic policy and for each optional term life insurance rider. Such indexes need not be included for optional riders which are limited to benefits such as accidental death, disability waiver of premium, preliminary term life insurance

33 coverage of less than 12 months, and guaranteed insurability benefits nor for the basic policies or optional riders covering more than one life; (8) For participating policies and participating optional term life insurance riders, the equivalent level annual dividend, under the same circumstances and for the same durations as life insurance cost indexes; (9) For policy summaries which include dividends, a statement that dividends are based on the company's current dividend scale and are not guaranteed. In addition, there must be a statement in close proximity to the equivalent level annual dividend which reads as follows: An explanation of the intended use of the equivalent level annual dividend is included in the life insurance buyer's guide; (10) A statement in close proximity to the life insurance cost indexes as follows: An explanation of the intended use of these indexes is provided in the life insurance buyer's guide; and (11) The date on which the life insurance policy summary is prepared. Source: Law Implemented: SDCL ,

34 20:06:10:27. Life insurance policy summary requirements. The life insurance policy summary must be a separate document and all information required to be disclosed must be set out in such a manner that no portion is minimized or made obscure. Any amounts which remain level for two or more years of the policy may be represented by a single number if it is clearly indicated which amounts are applicable for each policy year. If more than one insured is covered under one policy or rider, guaranteed death benefits must be displayed separately for each insured or for each class of insureds if death benefits do not differ within the class. Zero amounts must be displayed as zero and may not be displayed as a blank space. Source: Law Implemented: SDCL , :06:10:28. Failure to comply. Failure of an insurer to provide or deliver a buyer's guide or a policy summary shall constitute an omission which misrepresents the benefits, advantages, conditions or terms of an insurance policy and may be a violation of SDCL Source: Law Implemented: SDCL ,

35 20:06:10:29. Effective date. This chapter applies to all solicitations of life insurance commencing on or after April 15, Source: Law Implemented: SDCL , :06:10:30. Life insurance buyer's guide. All insurers must use the National Association of Insurance Commissioners Life Insurance Buyer's Guide, as found in Appendix A of the Life Insurance Disclosure Model Regulation, adopted by the National Association of Insurance Commissioners in Source: General Authority: SDCL 58-33A-7, 58-33A-9. Law Implemented: SDCL 58-33A-9.

36 CHAPTER 20:06:14 HEALTH AND LIFE INSURANCE SOLICITATION (Repealed) Section 20:06:14:01 Definitions. 20:06:14:02 Scope. 20:06:14:03 General requirements. 20:06:14:03.01 General requirements for life insurance solicitation. 20:06:14:03.02 General requirements for health insurance solicitation. 20:06:14:03.03 Identity of insurer -- Status of insurer. 20:06:14:03.04 Introductory, initial, or special offers. 20:06:14:03.05 Testimonials or endorsements by third parties. 20:06:14:03.06 Use of statistics. 20:06:14:03.07 Exceptions, reductions, and limitations. 20:06:14:03.08 Preexisting conditions in health insurance policies. 20:06:14:04 Disclosure requirements.

37 20:06:14:04.01 Short term major medical disclosure. 20:06:14:05 Equivalent level annual dividend of a life insurance policy. 20:06:14:06 Equivalent level death benefit of a life insurance policy. 20:06:14:07 Life insurance surrender cost index. 20:06:14:08 Life insurance net payment cost index. 20:06:14:09 Life insurance policy summary. 20:06:14:10 Life insurance policy summary requirements. 20:06:14:11 Failure to comply. 20:06:14:12 Effective date. 20:06:14:13 Life insurance buyer's guide. 20:06:14:01. Definitions. Terms used in this chapter mean: (1) "Buyer's guide," an explanation which accompanies a policy; (2) "Cash dividend," the current illustrated dividend which can be applied toward payment of the gross premium; and

38 (3) "Generic name," a short title which is descriptive of the premium and benefit patterns of a policy or a rider. Repealed. Source: 6 SDR 38, effective April 15, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 27 SDR 54, effective December 4, Law Implemented: SDCL , :06:14:02. Scope. This chapter applies to any solicitation, negotiation, or procurement of health or life insurance occurring within this state by an issuer of health or life insurance contracts, including fraternal benefit societies, with the exception of those contracts outlined in SDCL 58-33A-1.Repealed. Source: 6 SDR 38, effective April 15, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 15 SDR 143, effective March 29, 1989; 16 SDR 208, effective June 3, 1990; 27 SDR 54, effective December 4, General Authority: SDCL 58-33A-7, (4). Law Implemented: SDCL ,

39 20:06:14:03. General requirements. The following are general requirements for health and life insurance solicitation: (1) Each insurer must maintain at its home office or principal office a complete file containing one copy of each form authorized by the insurer for use pursuant to this chapter. Each authorized form must be kept in the file for three years following the date of its last authorized use; (2) No solicitation may omit information or use words, phrases, statements, references, or illustrations if the omission of such information or use of such words, phrases, statements, references, or illustrations misleads or deceives or tends to mislead or deceive purchasers or prospective purchasers as to the nature or extent of any policy benefit payable, loss covered, or premium payable. The fact that the policy offered is made available to a prospective insured for inspection prior to consummation of the sale or that an offer is made to refund the premium if the purchaser is not satisfied does not remedy omissions or deceptive or misleading statements; (3) A display of guaranteed and nonguaranteed benefits in a life insurance policy must be placed adjacent to each other; (4) When a choice of the amount of benefits is referred to, a solicitation must disclose that the amount of benefits provided depends upon the plan selected. When a solicitation refers to various benefits which may be contained in two or more policies, other than group master policies, the solicitation must disclose that such benefits are provided only through a combination of such policies;

40 (5) A solicitation may not directly or indirectly make unfair or incomplete comparisons of policies or benefits or comparisons of noncomparable policies of other insurers; may not disparage competitors, their policies, services, or business methods; and may not disparage or unfairly minimize competing methods of marketing insurance; (6) A solicitation of a particular policy may not state or imply that prospective insureds become group or quasi-group members covered under a group policy and as such enjoy special rates or underwriting privileges unless that is the fact; (7) In recommending the purchase of a policy to a consumer, an agent must determine at the time of sale that the placement of the policy is not inappropriate for the consumer. The agent shall determine the appropriateness of a recommended purchase of insurance by examination of the totality of the particular consumer's circumstances, including the following: costs; (a) The consumer's financial condition, i.e., if a person is on a fixed income, premium insured's finances; (b) The consumer's need for insurance at the time of sale, i.e., existing policies, (c) The values, benefits, and costs of the consumer's existing insurance program, if any, when compared to the values, benefits, and cost of the recommended policy or policies. Repealed. Source: 6 SDR 38, effective April 15, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 15 SDR 143, effective March 29, 1989; 27 SDR 54, effective December 4, 2000.

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