LTC OVERVIEW Where It’s Been & Where It’s Going Judy Bass, LTCP, MHP, FLMI, ACS, ALHC, HIA State Farm Mutual Automobile Insurance Co. Bloomington, Illinois Robert R. Pohls, Esq. Pohls & Associates Los Angeles, California International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010 Lori Watson, CLTC, LTCP Genworth Financial San Rafael, California 1
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◦ IMAGE-Based System ◦ Automation of Benefit Payments and Letters ◦ Electronic Transmission of Assessment Data ◦ Metrics and Reporting Capability ◦ Dedicated Compliance Resource ◦ Dedicated Practices Resource ◦ Formal Referral Matrix Developed and Implemented
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International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010
LTC OVERVIEW Where It’s Been & Where It’s Going
Decision Making: Efficiency v. Effectiveness
Claims Adjudication vs. Claims Processing
◦ Reactive vs. Proactive Approach
◦ Early involvement in Claim Process
◦ Obtaining Quality Information in a Timely Manner
◦ Setting appropriate expectations
◦ Managing claims beyond initial decision (Insured's do Recover/Regain Independence)
◦ Reconciling Conflicting Benefit Eligibility Information
◦ Managing Suspect Claim Activity
◦ Relying on Care Coordination Suppliers to Gather and Provide Chronically Ill Certifications and Appropriate Plans of Care
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International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010
International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010
LTC OVERVIEW Where It’s Been & Where It’s Going
Appropriate Resource Utilization
◦ Segmenting Caseload Appropriately
◦ Accessing Highly Skilled Technical Resources
◦ Continually Developing, Revising and Training on Claims Adjudication Practices
◦ Developing and Maintaining Functional Care Provider Database
◦ Addressing Media and Consumer Concerns
◦ Hiring, Developing, and Retaining Skilled Staff
◦ Appropriate Succession Planning
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International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010
LTC OVERVIEW Where It’s Been & Where It’s Going
Legal and Regulatory Compliance
◦ Understanding and Applying Variations in State Laws and Regulations
◦ Growing Media, Departments of Insurance and Consumer Interest
◦ Impact of Market Conduct Examinations on Claims Organization
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International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010
LTC OVERVIEW Where It’s Been & Where It’s Going
Litigation Report -- Compliance
Continental Casualty Co. v. Lontz No. 281183 (Mich.App. 3/26/2009)
◦ Insurer sold tax-qualified and non-tax-qualified policies ◦ Non-tax-qualified policies had “exchange privileges” ◦ Insurer stopped selling long term care insurance altogether -- Initially concluded the “exchange privilege” need not be honored -- After 6 weeks, concluded the “exchange privilege” had to be honored ◦ Held: Plaintiffs lacked standing because they offered no evidence that they “suffered an injury in fact.”
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International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010
LTC OVERVIEW Where It’s Been & Where It’s Going
Litigation Report -- Compliance
Yoder v. American Travellers Life Insurance Co. 2002 Pa.Super. 398 (PAS, 2002)
◦ Policy provision requiring 3-day hospitalization was not affected by later changes in law ◦ Insurer had no duty to advise policyholder of changes in law
Haley v. AIG Life Insurance Co. A2-01-49 (D.N.D. 1/24/2002)
◦ Same issue and holding ◦ Insurer was required to defend fraud claim based on alleged misrepresentations that were non-specific
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International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010
LTC OVERVIEW Where It’s Been & Where It’s Going
Litigation Report -- Premiums
Rakes v. Life Investors Ins. Co. of America 582 F.3d 886 (8th Cir. 2009)
◦ Named plaintiffs in putative class action bought “guaranteed renewable” LTC policies ◦ Knew premiums could increase ◦ When premiums did increase, claimed the insurer always meant to increase them ◦ Held: ◦ Plaintiffs were guaranteed the right to renew their policies, but not guaranteed a level premium ◦ No fraudulent statement by insurer on which plaintiffs relied
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International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010
LTC OVERVIEW Where It’s Been & Where It’s Going
Litigation Report -- Premiums
Newman v. Dinallo 2009 NY Slip.Op. 50422(U) (N.Y.Sup.Ct. 2/10/2009)
◦ Consumers sought information offered to justify insurer’s premium increase ◦ Held: “The variables that factor into pricing premiums constitute trade secrets and need not be disclosed.”
Rose v. United Equitable Insurance Co. 2001 N.D. 154 (ND, 2001)
◦ Policy allegedly priced and underwritten improperly ◦ Allegations of a “death spiral” ◦ Held: Trial court improperly denied class certification motion
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International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010
LTC OVERVIEW Where It’s Been & Where It’s Going
Litigation Report -- Rescission
Metropolitan Life Insurance Co. v. Conger 474 F.3d 258 (6th Cir. 2007)
◦ Contestable investigation revealed pre-application problems and treatment for undiagnosed progressive disorder
◦ Held: No duty to disclose undiagnosed symptoms or medical history not specifically requested in application
Smith v. AF&L Insurance Co. No. ED 83685 (MO 8/24/2004)
◦ Held: Rescission for undisclosed use of Aricept improper because part of treatment for depression (not forgetfulness)
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International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010
“Insurers can, to some degree, avoid being surprised by claims stemming from conditions that would have led to denial of an application in the first place. No law requires insurers to limit the source of their information to the insurance applicant. Specifically, insurers can require applicants to release their medical records or have a physical examination. This case is a prime example.”
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International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010
LTC OVERVIEW Where It’s Been & Where It’s Going
Litigation Report -- Post-Claim Underwriting
Smith v. AF & L Insurance Co. No. ED-83685 (Mo. 8/24/2004)
The “contrast between the post claims review process and all its rigidity with the looseness of the underwriting process . . . when the application was reviewed is remarkable.”
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International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010
LTC OVERVIEW Where It’s Been & Where It’s Going
Litigation Report -- Pre-Existing Conditions
Wickland v. American Travellers Life Insurance Co. 513 S.E.2d 657 (W.Va. 1998)
◦ Periodic complaints of symptoms, without a health care provider’s medical advice or recommended treatment for the underlying condition, do not establish a pre-existing condition
◦ Ruling otherwise could prompt insureds to “keep all of their complaints to themselves to prevent … a denial of coverage.”
◦ The result would be “the camouflaging of “the early signs of illnesses and diseases that otherwise might have been curable, preventable, or treatable.”
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International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010
LTC OVERVIEW Where It’s Been & Where It’s Going
Litigation Report -- Nursing Homes
Gregg v. IDS Life Ins. Co., 592 NYS2d 182 (N.Y.A.D. 3 Dept. 1999)
◦ NY home care services agency is not a Nursing Home
Gillogly v. GE Capital Assurance Co.. 430 F.3d 1284 (10th Cir. 2005)
◦ OK residential care facility is not a Nursing Home
Geary v. Life Investors Ins. Co., 508 F.Supp.2d 518 (N.D. Tex. 2007)
◦ TX assisted living facility is not a Nursing Home
Musick v. AF & L Ins. Co., No. 2007-CA-168-MR (Ky.App. 11/21/2007)
◦ KY assisted living facility is not a Nursing Home
Wash. Health Care Ass’n. v. Arnold-Williams, 601 F.Supp.2d 1224 (2009)
◦ WA boarding home must be licensed by DSHS and/or ADSA
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International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010
LTC OVERVIEW Where It’s Been & Where It’s Going
Litigation Report -- Other Facilities
Healing Place, Ltd. V. Farm Bureau Mutual Ins. Co. of Michigan No. 286050 (Mich.App. 2010)
◦ Adult foster care facilities serve “adults who . . . require supervision on an ongoing basis but who do not require continuous nursing care.”
◦ Held: Unlawful to operate an unlicensed adult foster care facility
Empire State Association of Assisted Living, Inc. v. Daines 887 N.Y.S.2d 452 (N.Y.Sup.Ct. 2009)
◦ DOI regulations require adult care facilities to have RN on duty and on site 8 hours/day and 2 days/week
◦ Held: DOI cannot impose requirements that will inflate costs
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International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010
LTC OVERVIEW Where It’s Been & Where It’s Going
Litigation Report -- Home Health Care
Bell Care Nurses Registry, Inc. v. Continental Casualty Co. 20 So.3d 13 (Fla.App. 2009)
◦ Policy covered “secondary services” only if received in a week during which at least one “primary service” was received
◦ Primary services include those of an RN
◦ Secondary services include those of non-professional providers (e.g., home health aides)
◦ Insured received secondary services, but primary services were unnecessary
◦ Held: Insurer may not require that insured receive unnecessary primary services as a condition to coverage for secondary services
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International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010
LTC OVERVIEW Where It’s Been & Where It’s Going
Litigation Report -- Alternate Plan of Care
Roland v. Transamerica Life Insurance Co. No. 08-10941 (5th Cir. 2009)
◦ Insured proposed an APC; insurer proposed a different APC
◦ No agreement reached
◦ Held:
◦ APC provision was not ambiguous, merely an option that required mutual agreement
◦ No legal barrier to requiring a separate agreement to “contractual alternatives”
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International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010
LTC OVERVIEW Where It’s Been & Where It’s Going
Litigation Report -- Alternate Plan of Care
Mansur v. PFL Life Insurance Co. 589 F.3d 1315 (10th Cir. 2009)
◦ APC provision covered services outside of nursing home/LTCF if insured, physician and insurer all agreed
◦ Insurer offered to pay for home care services at 40% of daily benefit for services provided in nursing home/LTCF
◦ Insured objected, then sued for “cost of all services agreed to in the APC, subject only to the Policy maximum benefit”
◦ Held: 1) No enforceable APC without insurer’s agreement
2) No benefits payable since not in a nursing home/LTCF
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International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010
LTC OVERVIEW Where It’s Been & Where It’s Going
Litigation Report -- Fraud
United States v. Bryant No. 09-2532 (8th Cir. 6/4/2010)
◦ Insured’s son submitted claim forms for home care provided to his mother
◦ After caregiver stopped providing services, son asked him to sign 20 blank forms to seek reimbursement for unbilled services
◦ Son submitted claim forms for later period (11/2005-1/2007)
◦ Insured discovered when insured moved in with other son, hired a new care provider, and submitted separate claim forms
◦ Held: Guilty of mail fraud (18 months in prison; ordered to pay $29,444 in restitution)
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International Claim Association – 2010 Annual Education Conference – Austin, Texas – October 5, 2010