Introduction

Long-Term Care (LTC) insurance is designed to cover services and expenses that are not covered by regular health insurance when the insured suffers from a chronic medical condition, disability or disorder, like dementia. These policies typically pay a set daily benefit for reimbursement for needs such as nursing home care, assisted living facilities, home healthcare, home modifications, adult day care services, and care coordination. In California, LTC Insurance is defined in Insurance Code Section 10231.2.Under the statute, LTC insurance includes:

• A. Any insurance policy, certificate, or rider advertised, marketed, offered, solicited, or designed to provide coverage for diagnostic, preventive, therapeutic, rehabilitative, maintenance, or personal care services that are provided in a setting other than an acute care unit of a hospital.
• B. All products containing coverage for care in a nursing home, convalescent facility, extended care facility, custodial care facility, skilled nursing facility, or personal care home; home care coverage including home health care, personal care, homemaker services, hospice, or respite care; or community-based coverage including adult day care, hospice, or respite care.

Typical LTC policy terms provide for payment of a daily benefit amount and will pay an insured the amount incurred each day they are in a qualified care facility, up to this daily amount. There is often also a total maximum amount payable from which the benefits paid are deducted. A typical LTC policy will pay benefits if the insured is unable to perform a given number of Activities of Daily Living for a given period of time due to a loss of functional capacity, or if they demonstrate severe cognitive impairment.Many early LTC policies provide unlimited lifetime benefits. Most issued today contain a stated limit in lifetime benefits.

The Underpricing Dilemma

In the late 1990s and early 2000s, there was a trend in the insurance industry to issue LTC policies at attractive rates. Many who purchased these policies were middle-aged at the time and are now reaching the age at which they now need to receive the benefits they expect to be paid under the LTC policies. Insurers now realize that they may have issued policies with rich benefits at premiums that are too low to profitably underwrite them. In other words, insurers made erroneous pricing decisions and are now reaping the costs associated with these poor decisions.

The Denial of Legitimate Claims

As a result, insurance companies are denying legitimate claims, including using many of the same tactics that have led to substantial insurance bad faith and punitive damages awards in lawsuits over disability claim denials and LTC claim denials.

For example, LTC insurers deny claims based on illegal policy provisions. In California, insurance companies may not include policy definitions that conflict with statutory provisions as required pursuant to state law. A policy may require the insured to demonstrate “severe cognitive impairment” for a claim to be approved, and the insurer will insert its own definition of what constitutes “severe” impairment. But if “severe cognitive impairment” is defined by law, the insurer’s definition may not comply with the law. Under California law, “Severe cognitive impairment” means a loss or deterioration in intellectual capacity that is (1) comparable to (and includes) Alzheimer’s disease and similar forms of irreversible dementia; and (2) measured by clinical evidence and standardized tests that reliably measure impairment in the individual’s short-term or long-term memory; orientation as to people, places, or time; and deductive or abstract reasoning. See Ins. Code, § 10232.8(e); IRS Notice 97-31.

Insurers might also use deceptive language in their claim forms to wrongly deny claims. The covenant of good faith and fair dealing requires insurers to thoroughly inquire into all possible bases to pay a claim before denying it. See Egan v. Mutual of Omaha Ins. Co., 24 Cal.3d 809 (1979). Also, the insurer has the burden of seeking out information relevant to a claim, so it must communicate with the insured and his physicians in a manner calculated to elicit an informed response. See Hughes v. Blue Cross of Northern California, 215 Cal.App.3d 832 (1989). However, insurers still will strategically word forms to allow for ambiguities to justify denials, such as using varying degrees of cognitive impairment – “mild,” “moderate,” “severe” – then denying any claims not marked “severe.” But the form will use a different definition for “severe” than the statutory definition. Such a denial may not comply with the law.

Insurers also use abusive tactics designed to take advantage of vulnerable insureds, such as insisting on multiple forms to be regularly submitted by each insured, her physicians, and her guardian, then denying the claim for any error found in any of the forms, however minor. Or the insurer will require specific information from the insured in a confusing manner that prompts the insured to call to inquire about what information to provide, then the insurer will pass the insured around from one person to another without ever providing an answer. When the insured does not provide the information on time, the insurer may deny the claim.

Clearly, LTC insurers issuing these policies did not expect to receive so many claims under their LTC policies. And the insurers have now determined that they can expect the number of LTC claims to increase substantially in the future. Because insurers are currently using these tactics to deny legitimate claims, it is likely that insurers will become even more aggressive in denying LTC claims as more claims are filed in the future.

Protecting Your Interests

If you have made a claim under an LTC policy, or plan to make a claim soon, you can expect that your claim will likely be denied. If your LTC claim is denied, you should contact a knowledgeable and experienced insurance claims LTC attorney. The attorneys at McKennon Law Group PC have the knowledge and expertise needed to determine whether a claim denial is proper and we can ensure you are placed in the best position possible to receive the LTC benefits you are entitled to under to the LTC coverage you purchased.