A. There shall be a provision for comprehensive major medical policies as follows: As of the date of issue of this policy, no misstatements, except willful or fraudulent misstatements, made by the applicant in the application for this policy shall be used to void the policy or to deny a claim for loss incurred or disability (as defined in the policy). In the event a misstatement in an application is made that is not fraudulent or willful, the issuer of the policy may prospectively rate and collect from the insured the premium that would have been charged to the insured at the time the policy was issued had such misstatement not been made.

B. There shall be a provision for policies other than comprehensive major medical policies as follows: After two years from the date of issue of this policy, no misstatements, except fraudulent misstatements, made by the applicant in the application for this policy shall be used to void the policy or to deny a claim for loss incurred or disability (as defined in the policy) commencing after the expiration of such two-year period.

C. The foregoing policy provisions shall not be so construed as to affect any initial two-year period nor to limit the application of Sections 59A-22-17 through 59A-22-19, 59A-22-21 and 59A-22-22 NMSA 1978 in the event of misstatement with respect to age or occupation or other insurance.

D. A policy that the insured has the right to continue in force subject to its terms by the timely payment of premium (1) until at least age fifty or (2) in the case of a policy issued after age forty-four, for at least five years from its date of issue, may contain in lieu of the foregoing the following provision, from which the clause in parentheses may be omitted at the insurance company's option, under the caption "Incontestable":

After this policy has been in force for a period of two years during the lifetime of the insured (excluding any period during which the insured is disabled), it shall become incontestable as to the statements contained in the application.

History: Laws 1984, ch. 127, § 426; 1990, ch. 110, § 3; 1993, ch. 126, § 4; 1994, ch. 75, § 27; 2008, ch. 87, § 1; 2019, ch. 259, § 4.

The 2019 amendment, effective June 14, 2019, removed language that permitted and regulated the exclusion of pre-existing conditions from health care coverage; and deleted former Subsections E through H.

The 2008 amendment, effective July 1, 2008, in Subsection A, required that comprehensive major medical policies provide that no misstatements made by the applicant shall be used to void the policy or to deny a claim and that if the misstatement was not fraudulent or willful, authorized the issuer to prospectively rate and collect the premium that would have been due if the misstatement had not been made; and in Subsection B, required that policies other than comprehensive major medical policies contain the stated provision.

The 1994 amendment, effective January 1, 1995, in Subsection B, inserted the language beginning "For individual" preceding "no claim" in the first sentence, added the second sentence, and added Paragraphs B(1) and B(2); rewrote the introductory language of Subsection C preceding "contain provisions", which formerly read "An individual policy may, in lieu of the provisions stated in Subsection B of this section,"; deleted the former second sentence in Paragraph C(2), which read "This shall not be construed to prohibit preexisting condition provisions that are more favorable to the insured"; and added Subsections D and E.

Applicability. — Laws 1994, ch. 75, § 36 makes the provisions of §§ 26 to 34 of the act applicable to all plans and policies delivered, issued for delivery or renewed on or after January 1, 1995.

The 1993 amendment, effective June 18, 1993, inserted "disclosed on the application" in Subsection B.

Law reviews. — For note and comment, "Why the Recession of Health Insurance Policies is not an 'Equitable' Remedy," see 40 N.M. L. Rev. 363 (2010).