Author: Christopher F. Petillo

Chris’s insurance litigation experience includes coverage and extra-contractual disputes in state and federal courts across the country, involving life, long-term care, annuity, and property and casualty policies. Substantively, Chris’s litigation focuses on life insurance pricing issues such as cost of insurance, fraud (including rescissions), broker misconduct, lapse and reinstatement, civil RICO, and claims disputes. Visit Christopher's full bio on the Faegre Drinker website.

CDI Issues Bulletin Warning Insurers of False and Misleading Advertisements Related to Public Option Legislation Pending in California

Insurers and brokers selling long-term care (LTC) insurance in California should be aware of the California Department of Insurance (CDI) bulletin of August 23, 2023, expressing concern over certain complaints received by CDI regarding marketing efforts being used to encourage California residents to purchase LTC insurance in advance of any LTCi public option that may be implemented in California. Specifically, the complaints alleged that marketing efforts have included statements that such LTCi public option will be implemented in 2024; that a payroll tax will be levied on California residents as part of the public option program; and that – like the regime in Washington – such tax can be avoided by purchasing LTCi before the end of 2023.

As part of the bulletin, the CDI emphasized that no legislation concerning a public option has been passed. Rather, pursuant to California Assembly Bill 567 (2019), a task force has been created to study potential design structures, which feasibility study was issued in December of last year. Additionally, the task force is currently working on an actuarial analysis of the proposed design structures, due to be issued by January 1, 2024. The CDI emphasized that, following the issuance of any actuarial report, the Legislature “may choose to adopt some, all, or none of the recommendations of the Task Force.”

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Challenges of Long-Term Care

The Biden administration recently proposed $400 billion (reduced to $150 billion) in new funding to support home-care workers as part of the Build Back Better plan. But in a recent article in National Affairs, “The Long-Term Care Challenge,” Professor Robert Saldin* argues that this proposal does not go far enough to meet the burgeoning need for long-term care (LTC). Saldin asserts that Americans’ “woeful ignorance” of their own eventual need for LTC insurance, together with worsening demographic trends, has created a need for a “universal national program to mitigate the catastrophic [LTC] costs that drain state budgets and impoverish middle-class Americans.”

Saldin begins by outlining the well-known demographic trends that are exacerbating the already grim state of LTCi in America. About 60 percent of those who require LTC are over the age of 65, and those individuals receive 80 percent of national LTC spending. These trends are set to worsen over time, he says, requiring systemic reform to avoid “significant constraints on America’s dynamism and vitality.” For example, Saldin notes that some estimates suggest that by 2030 24 million people will required LTC, up from 14 million now.

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Washington State’s New Long-Term Care Public Option Podcast

In our latest podcast, I am joined by Margie Barrie* to discuss Washington’s new long-term care insurance public option, Washington Cares. See generally Wash. Stat. 50B.04.010, et seq. As many of you know, Washington permitted a one-time opt-out from the Washington Cares program—and the associated payroll tax (effective January 1, 2022) being used to fund the program—for people who purchased qualified LTCi by November 1, 2021.

After briefly discussing the key features of the law, we discuss how the exemption to the payroll tax dramatically impacted Margie’s life as a broker selling LTCi; what we heard from our carrier contacts on how it impacted new business in Washington this year; and what we are hearing about other efforts to deploy similar legislation in other states. Margie and I also discuss our plans to continue to track this significant development in long term care. We will be focusing on the impact of the Washington legislation and other states considering LTCI public options.

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Is the WISH Act the Answer to Concerns About the Cost of an Aging Population?

A new bill proposed in Congress seeks to address financial concerns due to an aging population through the Well-Being Insurance for Seniors to be at Home Act (“WISH Act”). The current population of the United States is aging rapidly, leading to an increasing percentage of the population aged 65 and over. In fact, it is estimated that by 2050 the number of people living over the age of 65 will almost double and the number of people living over the age of 85 will triple.

The WISH Act, introduced on July 1, 2021 by U.S. Representative Tom Suozzi (NY), cautions that “the typical U.S. senior could afford only about 12 months of nursing home care, assisted living care, or extensive home care using their financial wealth.” This is consistent with the idea that over “half of Americans entering old age today will have a long-term need for constant attendance by another person, averaging $298,000 costs per person for about 2 years of serious self care disability (as defined in HIPAA), and more than half will be out-of-pocket, according to the U.S. Department of Health and Human Services (HHS).”

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Aging at Home is More Than Just a Passing Fad

An astounding 88% of Americans would prefer to receive any ongoing living assistance they need as they age at home or with loved ones, according to a new nationwide survey released this week by The Associated Press-NORC Center for Public Affairs Research.

Furthermore, 69% of participants reported they have done only a little or no planning for their long-term care needs, and 49% of participants over the age of 40 reported that they expect the majority of their long-term care costs will be paid by Medicare. Considering Medicare currently covers very limited long-term care costs, and the Medicare trust fund is at risk to become insolvent in the near future, 89% of participants reported that strengthening the Medicare trust fund should be a priority for the Biden administration and Congress.

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Long-Term Care Insurance Market Updates

We write on a few articles from the past week that we found interesting.

A recent article from Susan K. Neely, President and CEO of the American Council of Life Insurers, “Helping Older Americans Stay in Their Homes,” looks at challenges facing the long-term care insurance market as COVID-19 concerns continue and more and more people consider long-term care their greatest financial concern behind retirement savings. She also discusses how lawmakers are looking for ways to help more people get long-term care insurance.

Read the full ACLI IMPACT article.

In addition, we want to bring your attention to a new Best’s Market Segment Report, “U.S. Long-Term Care Product Performance Pressures Continue.” According to the report, from credit reporting agency AM Best, loss ratios in the LTCi market continue to climb and “poor performance from inadequate pricing is a significant issue for LTC insurers, owing to low interest rates, lapse rates, improving mortality, rising morbidity and policyholder utilization assumptions.”

The Report also looks more closely at certain factors driving rate increases nationwide, the evolution of combo products to meet growing coverage demand and efforts of the National Association of Insurance Commissioners to stabilize the LTCi market. Although, “AM Best views this as a very difficult task given the state-by-state insurance regulatory structures in place, and expects continued use of closed blocks to separate the legacy liabilities from the new ones in order to increase transparency to outside users of financial statements. AM Best also expects LTC insurers to trend toward simplified policy design and fewer assumptions embedded in their policies. Along with carriers slowing down on offering lifetime benefits coverage and inflation-adjusted features, insurers may also soon begin to disregard lapse rates as an underlying assumption for product pricing.”

Read Best’s Market Segment Report. (Subscription Required).

Finally, in “How low interest rates are changing LTC Insurance products,” Tom Rieske, Jr., Managing Director of LTCi Partners, discusses historical trends in LTCi sales (i.e., the trend toward sales of hybrid life and LTC insurance products) and recent reactions to the persisting low-interest rate environment (e.g., development of a hybrid IUL policy with LTC coverage).

Read the full LTCi Partners article.

Long-Term Care Insurance Fraud, Waste, and Abuse: A discussion with Karen Smyth and Jeff Ferrand

Industry stalwarts Karen Smyth (Vice President of Long Term Care Operations at Wilton Re) and Jeff Ferrand (Vice President of Fraud Services at LTCG) have significant experience developing and implementing anti-fraud, waste, and abuse programs at the carrier and TPA level.

Please listen to the below podcast with Chris Petillo and Jessica Loesing as they discuss Karen’s and Jeff’s views on, among other questions, how fraud, waste, and abuse manifest in the LTCi space, and potential efforts carriers and TPAs can use to prevent and detect fraud, waste, and abuse. Karen also shares her experience as a witness in a criminal trial involving LTCi insurance fraud and Jeff shares his past experience as outside counsel prosecuting insurance fraud cases. Finally, stick around to hear some of the creative and industrious ways Karen and Jeff have been passing the time with their families (at home) during the pandemic.

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Part I: InsurTech Movement Shakes Up LTCi Vendor Composition

Compared with other insurance lines and financial services^[1], the InsurTech movement had been relatively slow in impacting LTCi. That inertia recently gave way to a bourgeoning group of companies targeting LTC insurers and providers, demanding a first-of-its-kind LTC Tech Summit (presented by the SOA and Maddock Douglas) on November 7, 2019. In anticipation of this year’s Virtual Elder Tech Summit next week, it is worthwhile to look back at some of the next generation vendors that presented last year.

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