Author: Jane E. Blaney

Jane Blaney assists clients seeking solutions related to insurance matters, with concentrated knowledge in health insurance, regulatory and privacy matters, and data and technology services. Prior to becoming an attorney, Jane worked clinically in the health care setting for eight years, working in direct patient care and also advising businesses on proper regulatory adherence. She also worked advising patients on insurance matters, specializing in government health care coordination with private insurance. Jane is currently pursuing her Master’s in Health Analytics from the Fuqua School of Business at Duke University, focusing on business strategy and advancement, through use of data analytics and technology. View Jane’s full bio on the Faegre Drinker website.

HIPAA Regulation of Online Tracking Technologies

In a December 2022 bulletin published by the Office for Civil Rights at the U.S. Department of Health and Human Services (HHS), HHS made clear that the use of third-party tracking technologies by covered entities and business associates is subject to HIPAA privacy and security rules. The use of tracking technologies developed by third-party vendors is increasingly common, and much of the LTCi industry is subject to HIPAA privacy and security rules as either covered entities or business associates. HHS noted in the bulletin that covered entities and business associates “are not permitted to use tracking technologies in a manner that would result in impermissible disclosures of [protected health information (“PHI”)] to tracking technology vendors or any other violations of the HIPAA Rules.” And, as applied to the use of tracking technologies, HHS’s view of what constitutes PHI may be broader than expected.

What Are Tracking Technologies?

Tracking technologies (including cookies, pixels, and other similar technologies) collect information about individuals who interact with an entity’s website or mobile application (“mobile app”). Businesses use a variety of tracking technologies on websites and mobile apps to improve functionality and learn more about users’ activities. Tracking technologies developed by third parties generally involve the sharing of data back to that third party, so when a HIPAA-covered entity or business associate uses these tracking technologies, they must be cognizant of what data is being shared, to who, and for what purpose.

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The NAIC LTCi Reduced Benefit Options Subgroup Reports on Potential Issues Related to LTC Wellness Benefits

On July 22, 2021, the NAIC Long-Term Care Insurance Reduced Benefit Options (EX) Subgroup, led by Commissioner Altman (PA), posted its first draft of a discussion paper Issues Related to LTC Wellness Benefits online. Comments are due September 5, 2021.

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Updates to the Long-Term Care Insurance NAIC Model Act and Model Regulation

As part of its effort to revamp and modernize the Model Laws, the National Association of Insurance Commissioners (NAIC) is updating the Long-Term Care Insurance Model Act, Model 640-1, and the Long-Term Care Insurance Model Regulation, Model 641-1 (combined, the Models). The current versions of the Models were finalized in 2017, and all states have adopted the current Models or similar legislation.

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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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Liability Insurance Rates and Reduced Capacity Add Pressure to the Cost of Long-Term Care Services

The cost of long-term care services continued to rise during the pandemic, and many care providers expect their clients’ costs to increase significantly in 2021.1  A new Willis Towers Watson Insurance Marketplace Realities 2021 Spring Update (“Spring Update”) concludes that 2021 will continue to squeeze long-term and senior care providers from both sides—with general and professional liability insurance rates predicted to increase by 30% or more, and a persistence of 2020’s overall reduced liability capacities in the market for the long-term care provider sector.

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