§ 58-58-250. General rules. - North Carolina Statutes

§ 58‑58‑250. General rules.

(a)        A provider enteringinto a contract shall first obtain:

(1)        If the viator is theinsured, a written statement from a licensed attending physician that theviator is of sound mind and under no constraint or undue influence to enterinto a contract.

(2)        A document in whichthe insured consents to the release of his or her medical records to a provideror broker and, if the policy being viaticated has been in effect for less thanfive years, to the insurance company that issued the policy covering the lifeof the insured.

(b)        Within 20 daysafter a viator executes documents necessary to transfer any rights under apolicy or within 20 days after entering any agreement, option, promise, or anyother form of understanding, expressed or implied, to viaticate the policy, theprovider shall give written notice to the insurer that issued that policy thatthe policy has or will become a viaticated policy. The notice shall beaccompanied by the documents required by subsection (c) of this section.

(c)        If the policy beingviaticated has been in effect for less than five years, the viatical providershall deliver a copy of the medical release required under subdivision (a)(2)of this section, a copy of the viator's application for the contract, thenotice required under subsection (b) of this section, and a request forverification of coverage to the insurer that issued the policy that is thesubject of the viatical settlement. The NAIC's form for verification shall beused unless the Commissioner develops standards for verification.

(d)        The insurer shallrespond to a request for verification of coverage submitted on an approved formby a provider within 30 days after the date the request is received and shallindicate whether, based on the medical evidence and documents provided, theinsurer intends to pursue an investigation at this time regarding the validityof the policy.

(e)        Before or at thetime of execution of the contract, the provider shall obtain a witnesseddocument in which the viator consents to the contract, represents that theviator has a full and complete understanding of the contract, that he or shehas a full and complete understanding of the benefits of the policy,acknowledges that he or she is entering into the contract freely andvoluntarily and, for persons with a terminal or chronic illness or condition,acknowledges that the insured has a terminal or chronic illness or conditionand that the terminal or chronic illness or condition was first diagnosed afterthe policy was issued.

(f)         If a brokerperforms any of these activities required of the provider, the provider isdeemed to have fulfilled the requirements of this section.

(g)        All medicalinformation solicited or obtained by any licensee is subject to the applicable provisionsof federal and North Carolina law relating to confidentiality of medicalinformation.

(h)        All contractsentered into in this State shall provide the viator with an unconditional rightto rescind the contract for at least 10 business days after the receipt of theviatical settlement proceeds. If the insured dies during the rescission period,the contract shall be deemed to have been rescinded, subject to repayment tothe provider or purchaser of all viatical settlement proceeds, and any premiums,loans, and loan interest that have been paid by the provider or purchaser.

(i)         The provider shallinstruct the viator to send the executed documents required to effect thechange in ownership, assignment, or change in beneficiary directly to theindependent escrow agent. Within three business days after the date the escrowagent receives the documents, or from the date the provider receives thedocuments, if the viator erroneously provides the documents directly to theprovider, the provider shall pay or transfer the proceeds of the viaticalsettlement into an escrow or trust account maintained in a state or federallychartered financial institution, the deposits of which are insured by theFederal Deposit Insurance Corporation (FDIC) or any successor entity. Uponpayment of the settlement proceeds into the escrow account, the escrow agentshall deliver the original change in ownership, assignment, or change inbeneficiary forms to the provider or related provider trust. Upon the escrowagent's receipt of the acknowledgment of the properly completed transfer ofownership, assignment, or designation of beneficiary from the insurancecompany, the escrow agent shall pay the settlement proceeds to the viator.

(j)         Failure to tenderconsideration to the viator for the contract within the time required underG.S. 58‑58‑245(a)(6) renders the contract voidable by the viatorfor lack of consideration until the time consideration is tendered to andaccepted by the viator.

(k)        Contacts with theinsured for the purpose of determining the health status of the insured by theprovider or broker after the viatical settlement has occurred shall only bemade by the provider or broker licensed in this State or its authorizedrepresentatives and shall be limited to once every three months for insuredswith a life expectancy of more than one year, and to no more than once permonth for insureds with a life expectancy of one year or less. The provider orbroker shall explain the procedure for these contacts at the time the contractis entered into. The limitations set forth in this subsection shall not applyto any contacts with an insured for reasons other than determining theinsured's health status. Providers and brokers shall be responsible for theactions of their authorized representatives.

(l)         Every relatedprovider trust shall have a written agreement with the licensed viaticalsettlement provider under which the licensed viatical settlement provider isresponsible for ensuring compliance with all statutory and regulatory requirementsand under which the trust agrees to make all records and files related toviatical settlement transactions available to the Commissioner as if thoserecords and files were maintained directly by the licensed viatical settlementprovider.

(m)       Notwithstanding themanner in which a viatical settlement broker is compensated, a broker is deemedto represent only the viator and owes a fiduciary duty to the viator to actaccording to the viator's instructions and in the best interest of the viator. (2001‑436, s. 3.)