California Insurance Lawyer Blog

A New York Times editorial documents the next health insurance battleground: medical loss ratios, the amount of premiums spent on patient care as opposed to administrative costs and profits. See “The Gaming Begins.”

The federal health reform legislation mandates that by 2011 health insurers must spend 80 to 85 percent of premiums on medical services or activities that improve the quality of care. The legislation, however, doesn’t specifically define what activity will qualify as an improvement in the "quality of care." That leaves plenty of room for carriers to manipulate the process and circumvent the true intent of the legislation.

According to the article, Sen. Jay Rockefeller, a democrat from West Virginia, has found insurers are already classifying many administrative costs as medical expenses. He wants Congress to impose a rigorous standard. The New York Times is advocating sensible boundaries that exclude technologies and programs that merely streamline operations.

For example, insurers want to include the cost of setting up provider networks and programs that deter fraud and overbilling in the patient care ratio. Most people, however, would consider those administrative activities.

It’s clear to us that someone at the federal or state level must monitor carrier decisions to blur the lines between patient care and administrative costs so health care reform can remain the true reform Americans counted on.

Los Angeles Times business columnist Michael Hiltzik recently wrote about retired state employees who purchased a long-term care insurance policy in 1997. Unfortunately, like many others who had purchased long term care insurance years ago, the couple could no longer afford the insurance because premiums had increased 100 percent. See, “Long-Term Care Policies: Pouring Money Down a Hole?” http://www.latimes.com/business/la-fi-hiltzik7-2010apr07,0,7567632.column.
Many people who believed they were responsibly planning for the future by purchasing long-term care insurance in the late 1980’s or early 90’s are encountering this problem: Almost every insurer selling long-term care products at that time underpriced their policies. As a result during the past decade, these carriers have successfully obtained approval from state agencies to raise the premiums for their products. It is not unusual for a premium increase to be 40 percent to 50 percent of the original price. Unfortunately, these increases come at a time when many of the policyholders are now on a fixed income and cannot afford the increased cost.
Policyholders who purchased policies before 1993 may have another critical but less publicized issue in addition to substantial premium increases: outdated protection. If policyholders purchased “nursing home” only policies, their insurance carriers will likely contend the policies do not cover the more popular assisted living facilities.
Additionally, a policyholder may have purchased a “home healthcare” benefit policy, which is intended to pay for services rendered by a home healthcare aide in one’s “home.” Although an insured may have relocated his or her residence to an assisted living facility, a carrier may not pay because it contends that the facility is not the insured’s “home.”
At Kantor & Kantor, we provide assistance to those policyholders who have been unfairly denied benefits under long-term care policies, and we have successfully argued that benefits cover assisted living facilities. If your long-term care insurer has denied benefits based on policy language, we can help.

-CC

Looking for an interesting book to read? How about the book "Nudge." It was co-authored by Cass Sunstein (Harvard Law School) and Richard Thaler (Univ. of Chicago Business School), and presents various ideas about helping consumers improve decisions about health, wealth and happiness.

Among other things, the book has a brief ERISA discussion. While its focus is on retirement more so than disability, the principles the authors raise are virtually the same. The authors write:

“ERISA sets forth three fiduciary principles for retirement-plan investments: the exclusive benefit rule, requiring that plans be managed exclusively for the benefit of participants; the prudence rule, requiring that plan assets be invested according to a ‘prudent investor’ standard; and the diversification rule, requiring that plan assets be diversified so as to minimize the risk of large losses. Most notably, company stock is exempted from the diversification requirement in defined-contribution plans—largely because, at the time ERISA was passed, large employers with profit-sharing plans lobbied Congress to exempt them from the diversification requirements imposed on defined-benefits plans. Employers are still expected to act prudently, however, in determining whether company stock is a suitable investment.”

The authors go on to explain how perverse this is from a workers’ welfare perspective. Diversification is key to a healthy investment portfolio, yet employers have an interest in seeing that their companies’ stock performs well and those profits are shared, even when this may hurt employees’ retirement funds.

Sunstein and Thaler explain: “The primary incentive problems in this context are possible conflicts of interest between the employer and the employee. The issues regarding company stock are a good example. The ERISA laws already require firms to act in the best interest of the employees. These laws should be enforced.”

Similarly, ERISA requires disability and health plan administrators and/or insurance companies to operate in the best interest of employees. However, often there is a conflict between paying claims for disabled or sick employees, and maximizing profits for shareholders of the insurance companies, which will be affected by payouts on insurance claims. This conflicted fiduciary problem continuously arises in the field of ERISA law. Kantor and Kantor works to enforce ERISA laws on behalf of employees/ consumers generally, by holding insurance companies responsible for their fiduciary duties to their insureds.

You can purchase Nudge online and at major booksellers. It has plenty of worthwhile reading!

-ND

The new federal health care legislation helps American consumers generally by equalizing our rights and responsibilities. By requiring insurance coverage for all, it will spread risk and provide a safety net for consumers.

States like Massachusetts and New York, known for their outstanding medical care, and driven by broader social concerns of non-profit advancement of health care and protecting those suffering from wide-spread illnesses like cancer and AIDS (as well as the reality of high costs of medical care), have been trailblazers in taking closer steps toward universal health insurance coverage for their citizens, including those with pre-existing conditions. By doing so, they’ve begun to address the problem of the “death spiral,” where costs of insurance get so high that healthier people opt out of insurance, leaving a smaller pool of sick, more desperate people who must keep their insurance, but are forced to pay ever-increasing, often prohibitive premiums. The healthier people don’t want to pay high premiums to subsidize the sicker people, so they drop their coverage. The insurance companies in turn lose premium revenue from these healthier consumers, and hike up the premiums to those left in the customer pool. See “New York Offers Costly Lessons on Insurance,” http://www.nytimes.com/2010/04/18/nyregion/18insure.html?src=mv.

Recognizing the successes in Massachusetts and New York, the Federal government’s new health law widens the consumer pool and requires everyone to get insurance coverage. If people refuse, they’ll be fined. Though we won’t see this penalty phased in until 2014-16, the threat of a fine (ranging from $695 for an individual to over $2000 for a family), will nudge people into obtaining insurance coverage. The more people who purchase health insurance, the more diverse the pool of insureds, making for a broader, generally healthier pool, with shared risk, lower incidences of sickness, and lower overall costs (per head).

States and the federal government are also considering the need for governmental regulation of premium rates insurers set. This regulation would likely enforce limits on rate increases, based on profits and administrative costs. (For example, any increase must reflect only a 25% profit increase, the other 75% must be due to true health costs). The insurance industry is vehemently opposed to such regulation, which in the end benefits consumers. Even though traditionally insurers may issue refunds to insureds based on larger-than-expected end-of year profits, the likelihood of great surplusage may be nipped in the bud by governmental regulations limiting rates/profits earlier on – a true benefit to consumers. See “Democrats Seek More Control Over Health Insurance Rates,” http://www.ctnow.com/health/sns-health-reform-democrats-premiums,0,60356.story.
-- ND