Attorney General: Hon. Edward C. Krawiecki, Jr., House of Representatives, 1993-027 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

September 10, 1993

Hon. Edward C. Krawiecki, Jr.
House of Representatives
State Capitol
Hartford, CT 06106

Dear Representative Krawiecki:

This letter is written in response to your May 3, 1993, request for an opinion on Substitute Senate Bill No. 1055, An Act Concerning Medicare Supplement Policies. This bill has been engrossed as 1993 Conn. Pub. Act No. 93-390 and was vetoed by the Governor on July 2, 1993. On July 12, 1993, the Legislature overrode the Governor's veto.

You asked us two questions pertaining to this public act. Your first inquiry was stated as follows:

Would the latter requirement [i.e., the elimination of the use of age, gender, medical underwriting, and pre-existing conditions as factors for rating Medicare supplement policies] cause a potential impairment of the obligations of contracts as prohibited under Article I, Section 10 of the U.S. Constitution.

It is the policy of this Office that we will not provide advisory opinions to resolve the issue of the constitutionality of a state statute, except where the statute is unquestionably unconstitutional on its face. See Attorney General Directive No. 9 (Revised March, 1990), d 3 at 2.

We have reviewed 1993 Conn. Pub. Act. No. 93-390 and are cognizant of the rule that a state statute should not be held unconstitutional unless its invalidity is beyond reasonable doubt. Caldor, Inc. v. Thornton, 191 Conn. 336, 346, 464 A.2d 785 (1983). We do not find that the act before us is unquestionably unconstitutional on its face. Therefore, we cannot provide you with an opinion on the constitutionality of this public act.

Your second question was phrased as follows:

Additionally, would this provision be a violation of the state's Unfair Insurance Trade Practices Act?

Chapter 704 of the General Statutes treats unfair and prohibited insurance practices. Conn. Gen. Stat. e 38a-815 provides:

No person shall engage in this state in any trade practice which is defined in section 38a-816 as, or determined pursuant to sections 38a-817 and 38a-818 to be, an unfair method of competition or an unfair or deceptive act or practice in the business of insurance, nor shall any domestic insurance company engage outside of this state in any act or practice defined in subsections (1) to (12), inclusive, of section 38a-816.

Since 1993 Conn. Pub. Act. No. 93-390 is now the law in this state, we conclude that any entity which delivers, issues, continues, or renews Medicare supplement insurance policies or certificates whose premiums are rated in accordance with that public act would be acting consistently with state law and, therefore, would not be committing an unfair or prohibited insurance practice solely by virtue of implementing those premium rating requirements. In addition, the conduct authorized by 1993 Conn. Pub. Act No. 93-390 does not fall within the definition of "unfair practices" set forth in Section 38a-816. We have reviewed each of the 16 categories of unfair practices set forth in that statute. Based upon that review, we conclude, that rating premiums in accordance with the terms of 1993 Conn. Pub. Act 93-390 would not violate Conn. Gen. Stat. e 38a-815, even absent Public Act 93-390, because the failure to rate premiums on the bases of age, gender, previous claims history or the medical condition of the person covered by such policy or certificate is not an unfair practice defined under section 38a-816.

We trust this responds to your letter.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

William J. Prensky
Assistant Attorney General

RB/WJP/bjg


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