Section 2B: Readability of policy form; definition; approval; actions based on language
Section 2B. 1. No policy form of insurance shall be delivered or issued for delivery to more than fifty policyholders in the commonwealth until a copy of the policy form has been on file for thirty days with the commissioner, unless before the expiration of said thirty days the commissioner shall have approved the form of the policy in writing as complying with this section; nor shall any such policy be delivered or issued for delivery if the commissioner notifies the company in writing within said thirty days that in his opinion the form of said policy does not comply with the provisions of this section, specifying the reasons for his opinion, provided that such action of the commissioner shall be subject to review by the supreme judicial court, but during any such review the form shall not be delivered or issued for delivery in the commonwealth; nor shall any such policy form be so delivered or issued for delivery unless:
(a) The text achieves a minimum Flesch scale readability score of fifty;
(b) It is printed, except for tables, in not less than ten point type, one point leaded.
(c) The style, arrangement and overall appearance of the policy give no undue prominence to any portion of the text of the policy and any endorsements or riders;
(d) It contains a table of contents or an alphabetical subject index;
(e) The width of margins and ink to paper contrast do not unreasonably interfere with the readability of the form; and
(f) The organization of the content of the policy and the summary of the policy is conducive to understandability of the form.
Nothing in this section shall be construed to require the affirmative approval of the commissioner before issuance of a policy form which has been on file for at least thirty days.
For the purposes of this section, a Flesch scale readability score shall be measured as hereinafter provided:
(1) For policy forms containing ten thousand words or less of text, the entire form shall be analyzed. For policy forms containing more than ten thousand words, the readability of two two hundred word samples per page may be analyzed in lieu of the entire form. The samples shall be separated by at least twenty printed lines.
(2) (a) (i) The number of words and sentences in the text shall be counted and the total number of words divided by the total number of sentences. The figure obtained shall be multiplied by a factor of 1.015.
(ii) The total number of syllables shall be counted and divided by the total number of words. The figure obtained shall be multiplied by a factor of 84.6.
(iii) The sum of the figures computed under subclause (i) and subclause (ii) subtracted from 206.835 equals the Flesch scale readability score for the policy form.
(b) For the purposes of clause (a) the following procedures shall be used:
(i) A contraction, hyphenated word, or numbers and letters, when separated by spaces, shall be counted as one word;
(ii) A unit of words ending with a period, semicolon, or colon, but excluding headings and captions shall be counted as a sentence; and
(iii) A syllable means a unit of spoken language consisting of one or more letters of a word as divided by an accepted dictionary. Where the dictionary shows two or more equally acceptable pronunciations of a word, the pronunciation containing fewer syllables may be used.
Every policy form filed with the commissioner under this section shall be accompanied by a certificate stating the Flesch scale readability score achieved by such form.
The term ''text'' as used in this section shall include all printed matter except the name and address of the insurer, name or title of the policy, the brief description if any, captions and subcaptions, and schedule pages and tables.
The commissioner may, after notice and hearing, designate other readability tests as acceptable alternative tests to the Flesch scale readability analysis if he finds that any other such tests are equivalent in function, result and understandability.
This section shall apply to any domestic or foreign company, whether licensed or unlicensed by the commissioner to do business in the commonwealth.
2. For the purposes of this section the words policy form shall include, in addition to all policy forms of insurance, all certificates and subscription agreements or contracts of insurance issued pursuant to chapters one hundred and seventy-six, one hundred and seventy-six A, one hundred and seventy-six B and one hundred and seventy-six G, but shall not include any form for casualty or property insurance which is issued to insure a business, professional or governmental operation or any form for life insurance, accident or health insurance, or annuities, (a) which is a security subject to federal jurisdiction, (b) which is issued in connection with any employee benefit plan which is either subject to Title I of the Employee Retirement Income Security Act of 1974, 29 United States Code, sections 1002 to 1144, inclusive, or described in 26 United States Code, sections 79, 105, 125, 401, 403(a) or 409A of the Internal Revenue Code, (c) which conforms to the requirements of 26 United States Code, sections 403(b), 408 or 457 of said Code, or (d) which is a form used in connection with, as a conversion from, or in exchange for a policy form approved or deemed approved prior to the date such forms must be approved under this section; policyholder shall include, in addition to all insurance policyholders, all subscribers and holders of certificates issued pursuant to chapters one hundred and seventy-six, one hundred and seventy-six A, one hundred and seventy-six B and one hundred and seventy-six G.
3. Where the requirements of this section are met, the commissioner may approve such policy form for use in the commonwealth notwithstanding those provisions of any other laws which specify the content of insurance policies, provided the approved policy assures to the policyholders and claimants protection no less favorable than they would be entitled to under such other law.
In any action brought by a policyholder or claimant arising out of a policy form approved pursuant to this section, the policyholder or claimant may base such an action on either or both the substantive language prescribed by such other statute or the wording of the approved policy form.
4. To the extent that this section is inconsistent with the provisions of chapter one hundred and seventy-six M and any regulations promulgated thereunder, the provisions of said chapter one hundred and seventy-six M and any such regulations shall govern the terms, conditions, rates and all other matters concerning any policy form that is within the definition of a guaranteed issue health plan in said chapter one hundred and seventy-six M.