From time to time, colleagues in our larger Insurance practice, along with other non-insurance-related practices, write on issues that we feel are important enough to highlight on this blog. Emerging attention to Artificial Intelligence (AI) by lawmakers and regulators alike is one such issue. Among the topics highlighted in Faegre Drinker’s latest Artificial Intelligence Briefing is the Collaboration Forum on Algorithmic Bias held during NAIC’s Summer Annual meeting that featured various presentations, including one from our own Scott Kosnoff on how companies can mitigate their regulatory, litigation and reputation risk through AI risk management and governance.
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.
A relatively consistent flow of premium rate increase litigation has been filed against long-term care (LTC) carriers over the past several years. Following the plaintiffs’ bar having early success in a limited number of LTC rate increase class actions in the early 2000s, the tide turned definitively in favor of carriers in what we think of as the first generation of such litigation, where the plaintiffs’ bar focused primarily on an alleged duty to disclose possible rate increases and challenging the language of the contract itself. Despite the industry’s overall success, premium rate increase litigation has attracted an increased level of sophistication from the plaintiffs’ bar, which shifted to more creative theories based on extra-contractual representations (e.g., marketing materials) in what we view as the second generation of premium rate increase litigation. While the industry remains mostly successful in warding off rate increase litigation, a new trend may be developing as recent cases focus on more nuanced contractual limitations and rate increase implementation issues.
Assured Allies and Faegre Drinker have partnered to develop a playbook for the long-term care insurance industry. Responding and Managing the Impact of COVID-19 offers insights, guidance and ideas to manage the short- and medium-term impacts of the COVID-19 global pandemic and provides potential avenues for long-term care insurers to explore in the post-COVID-19 world that could change long-term care insurance forever.
As issues surrounding the cost of long-term care for Americans becomes the focus of the industry, premium rate increases have historically been necessary to maintain the financial integrity of most blocks of stand-alone long-term care insurance (LTCI) business. In conjunction with those rate increases, insurers have offered (and regulators have approved) an evolving menu of rate increase mitigation options for policyholders who do not wish to or otherwise cannot afford to pay the increased rate. Recently, we have seen new and innovative alternatives proposed by industry participants. There is a growing recognition that insureds should be educated about the nature of their existing coverage and presented with a variety of options in the alternative to paying the approved rate increase amount. In the past few months alone, insurers are offering, and regulators are approving (and sometimes even requesting), an even wider variety of options, such as modifying existing coverage, reducing available benefit, or taking a reduced paid-up policy, policy buyouts and even “hybrid” policy buyouts.