(a) A long-term care insurance policy or certificate shall contain provisions conditioning eligibility for benefits or services upon the occurrence of the following events:
  (1) the inability to perform, without assistance, any two activities of daily living, as set forth by the insurer; provided, however, that such activities of daily living shall include at a minimum those which are set forth and defined in §3.3804 of this title (relating to Definitions); or
  (2) the impairment of cognitive ability. For purposes of this subchapter, the term "impairment of cognitive ability" shall not be defined more restrictively than the deterioration or loss in intellectual capacity requiring substantial supervision for protection of self or others, as established by the clinical diagnosis of any licensed practitioner in this state authorized to make such a diagnosis. Such diagnosis shall include the patient's history and physical, neurological, psychological and/or psychiatric evaluations, and laboratory findings.
(b) Any insurer or other entity that offers a long-term care insurance policy or certificate that complies with subsection (a) of this section may also offer a long-term care policy or certificate that provides coverage based on the inability to perform without assistance any three activities of daily living, provided:
  (1) the policy or certificate meets the requirements of subparagraphs (A) through (D) of this paragraph:
    (A) the policy and certificate shall provide coverage based on meeting the eligibility requirements of subsection (a)(1) of this section,
    (B) the coverage based on the inability to perform, without assistance, any three activities of daily living shall:
      (i) be identical to the coverage provided under subparagraph (A) of this paragraph;
      (ii) provide a level of benefits for facility coverage that is higher than the level of benefits payable for facility coverage under subparagraph (A) of this paragraph;
      (iii) provide a level of benefits for non-facility coverage that is not less than the level of benefits payable for non-facility coverage under subparagraph (A) of this paragraph; however, in complying with §3.3815(c) of this title (relating to Standards for Home Health and Adult Day Care Benefits), home health or adult day care services coverage must be a dollar amount equivalent to at least one-half of one year's coverage available for the nursing home benefit associated with the corresponding number of activities of daily living.
    (C) the activities of daily living shall include those set forth and defined in §3.3804 of this title for coverage provided under subparagraphs (A) and (B) of this paragraph;
    (D) coverage provided based on meeting the eligibility requirements of subsection (a)(2) of this section for impairment of cognitive ability shall be identical to the coverage provided under subparagraph (A) of this paragraph and the benefit level shall not be less than the applicable benefit level payable under subparagraph (B)(ii) or (B)(iii) of this paragraph; and
  (2) the insurer or other entity shall offer the prospective insured, or where the policy is offered to a group, the offer required by provisions of this paragraph shall be made to the group policyholder; except that in the instance where the group policy will not be issued to an employer, labor union, or continuing care retirement center, the offering shall be made to each prospective covered individual, the option to purchase a policy or certificate that provides benefits set out in subsection (a) of this section and obtain either: a written rejection of such offer or written acknowledgement of such offer. Written rejection or acknowledgment of offer may be by a rejection or acknowledgment receipt, attached to or made part of the application, or by a certificate of rejection or offer signed by the prospective insured or group policyholder if the group policyholder will be an employer, labor union, or continuing care retirement center.
(c) For purposes of only subsection (b)(1)(B) of this section, the term "facility," to the extent coverage for care at any of the following is provided in the policy or certificate, means an assisted living facility, skilled nursing facility, extended care facility, intermediate care facility, convalescent nursing home, or maintenance or personal care facility.

Source Note: The provisions of this §3.3818 adopted to be effective July 20, 1992, 17 TexReg 4769; amended to be effective May 8, 1997, 22 TexReg 3786; amended to be effective February 29, 2000, 25 TexReg 1705