By A. Christopher Wieber (Law Office of Mark Scherzer)
Making use of a Long-Term Care Insurance policy can be quite tricky. In the context of a residential care facility, coverage may depend on whether the facility is designed to provide daily nursing, physical therapy, or other sorts of skilled care, or, instead, the facility is designed to mainly provide supportive care to allow semi-independent living. For example, in the case of Painter v. John Alden Life Ins. Co., 2023 U.S. App. LEXIS 4536 (6th Cir. Feb. 23, 2023), the Sixth Circuit Court of Appeals affirmed John Alden Life Insurance Company’s denial of coverage for the claimant’s residential care. Claimant move into the Seasons of Alexandria, which provides either a residential personal-care bed option, or a nursing-care bed option. Claimant was admitted under the personal care option, which meant that Seasons provided services “related to the activities of daily living … such as assistance in toileting, dressing, some assistance with meals, ambulatory assistance, [and] showering.” Personal-care residents receive no physical or occupational therapy, no physician’s supervision or care, and no professional nursing care.
Under the terms of the John Alden long term care policy, coverage was available for the expenses of a “long term care facility,” where a long term care facility was one that, among other things, “is primarily engaged in providing professional nursing care … on an inpatient basis,” “is under the supervision of a physician,” and “provides 24-hour per day nursing care under the supervision of an R.N.” The policy excluded coverage for the expenses of a “residential care facility,” which was defined as one that, among other things, “provides residents who do not require professional nursing care with basic, personal assistance care which can be performed by persons without professional medical training.” Claimant argued that there was ambiguity in the policy language which defined nursing care as “inpatient nursing care provided on an extended and continuous basis or as needed, as well as supportive care and personal care services,” suggesting that “as well as” should be read as “or” so that coverage would extend to any facility providing continuous nursing care services or supportive care and personal care services. The Sixth Circuit Court of Appeals rejected this interpretation as defying the plain meaning of the policy provisions:
But the term “as well as” does not mean “or”; it means “and,” “also,” or “in addition to….” Perhaps the most appropriate alternative construction for “as well as” in this case would be “and may include”: i.e., Long Term Nursing Care means inpatient nursing care, and may include personal-care services. In any event, “as well as” does not mean “or,” as Painter contends. The Endorsement does not define Long Term Nursing Care to be just personal-care services without any nursing-care services. Rather, the Endorsement ensures that when a facility provides supportive and personal-care services in addition to providing nursing care, it still qualifies as Long Term Nursing Care under the terms of the Policy.
As the Painter decision illustrates, just because you have a long term care insurance policy doesn’t mean you’ll have coverage for every kind of residential care facility. Nor will it necessarily be enough that you are admitted to a facility that provides covered care for certain residents, if you’ve been admitted to a part of the facility that provides exclusively non-covered care. The rules for coverage spelled out in a long term care insurance policy can be quite detailed and complex with regard to what is covered and what is not. If you plan to rely on your long term care insurance policy to cover your stay in a residential and/or nursing care facility, it will be extremely important to review the terms of your policy and make sure that the facility is properly licensed and falls within the types of facility specifically covered by your policy.
Chris Wieber is a New York lawyer who advises his clients regarding their life insurance, short and long term disability plans, disability income insurance policies, and long term care insurance policies. If you have questions regarding your long term care insurance coverage, please contact the Law Office of Mark Scherzer (212-406-9606). Please follow these links for other information regarding long term care insurance coverage and the services we provide.
