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Long Term Care Benefit Plan

This article is about the conversion of an in-force life insurance policy into a Long Term Care Benefit Plan (Also known as a Life Care Benefit).

Developed by Life Care Funding in 2007, a Long Term Care Benefit Plan is the conversion of an in-force life insurance policy into a pre-funded, irrevocable Benefit Account that is professionally administered with payments made monthly on behalf of the individual receiving care. Also known as a Life Care Benefit, this option extends the time a person would remain private pay and delays their entry onto Medicaid. The Benefit is not long term care insurance or a policy loan of any type. It is a unique financial option for seniors because all health conditions are accepted, and there are no wait periods, no care limitations, no costs to apply, no requirement to be terminally ill, and there are no premium payments. Policy owners use their legal right to convert an in-force life insurance policy to enroll in the benefit plan, and are able to immediately direct payments to cover their senior housing and long term care costs.

Forms of life insurance that qualify for conversion into a Long Term Care Benefit Plan

The conversion option applies to almost any form of life insurance: Universal, Whole, Term, and Group. The value of the conversion is based solely on the death benefit, and cash value is not a factor in determining the conversion value of a life insurance policy.

Forms of long term care that can be covered by a Long Term Care Benefit Plan

A Long Term Care Benefit Plan will pay the following monthly expenses directly to the health care provider:
 * Nursing Home
 * Assisted Living
 * Hospice Care
 * In-Home Skilled Nursing
 * Private Duty Home Health Care
 * Memory Care

Important Features of the Long Term Care Benefit

Funeral Benefit

Every Long Term Care Benefit Accounts reserve 5% of the death benefit or $5,000, whichever is the lesser, to provide a funeral benefit payment to the Account’s named beneficiary.

Fees to apply and responsibility to pay premiums

There are no application fees and no obligations to apply. Once a policy is converted by the owner, the Long Term Care Benefit payments begin immediately and the enrollee is relieved of any responsibility to pay any more premiums.

Length of time for enrollment process

The typical enrollment time is 30-60 days. The actual time to complete the process will vary on the applicant’s ability to provide the necessary requirements for review such as: signed application and authorizations, copy of life insurance policy, last two years of medical records, and offer/enrollment packet.

Remaining balance of a Long Term Care Benefit Account if the enrollee dies before all of the Benefit is paid out

Should the enrollee pass away with additional funds remaining in their Benefit Account, the remaining balance is paid directly to the enrollee’s named beneficiaries. Enrollees and/or their beneficiaries are assured to receive the full Benefit amount even if the client dies before all monthly payments have been made.

Transferring ownership of a life insurance policy to enroll in the Long Term Care Benefit Plan

The enrollee will transfer all ownership and benefi¬ciary rights to the life insurance policy through the secondary market to enroll in the Long Term Care Benefit Plan. From the moment the Benefit Plan is established, the Benefit Administrator will begin making monthly payments to the appropriate health care provider as well as all future premium payments on the life insurance policy. The enrollee is no longer responsible for premium payments and the policy is no longer considered an asset that will count against them for future Medicaid eligibility.

States where a policy be converted into a Long Term Care Benefit Plan

A life insurance policy owner has the legal property ownership right to convert their policy into a Long Term Care Benefit Plan in every state in America.

Long Term Care Benefit Account safe-guards

The Benefit Plan is an irrevocable; FDIC insured Long Term Care Benefit account held by a nationally chartered Bank & Trust and then administered by a licensed, third party benefit administration company ensuring that the funds are protected and only used for the recipient of care. The account also has the added protection for the enrollee of paying any remaining balance to a named account beneficiary and/or providing a final expense benefit to help cover funeral expenses.

Long Term Care Benefit Plan administration

The Benefit Plan is held as an irrevocable account by an FDIC insured, nationally chartered Bank & Trust company, and the monthly benefit is administered third-party by a licensed Benefit Administration company.
 * 1) The policy owner voluntarily directs a licensed Provider that the entirety of the proceeds from their policy conversion is moved from an escrow account and into their irrevocable, Benefit Account held by an FDIC insured, Chartered Bank & Trust Company.
 * 2) The enrollee provides specific instructions that the irrevocable account be used only to make monthly payments directly to their choice of long term care provider (home health, assisted living, and nursing home) and monthly payments are administered third-party by a licensed Benefit Administrator.

Regulation

The policy transaction is specifically designed to conform to the secondary market regulations that govern life settlement/viaticals, and the Benefit is administered specifically to be a Medicaid qualified spend-down of the asset proceeds. By obtaining the fair market value for the life policy, and then at the direction of the policy owner putting the funds into an irrevocable bank account which can only be administered third-party to pay for Medicaid/Medicare qualified long term care services; the Long Term Care Benefit Plan is a regulated and Medicaid qualified financial vehicle to help cover the costs of long term care. Converting a life insurance policy into a Long Term Care Benefit Plan provides multiple layers of consumer protections:
 * The transfer of ownership of life insurance policies conforms to the rigorous regulatory standards that govern life settlements in each state.
 * The irrevocable, FDIC insured Benefit Account is held by a nationally chartered bank & trust company and must conform to federal and state banking regulations.
 * Because the account is irrevocable and can only be spent on long term care services, the Benefit Plan is administered as a Medicaid qualified spend-down.

A Long Term Care Benefit Plan is a Medicaid qualified spend-down and a tax advantaged account

Because the policy is sold for its full market value, and the funds are protected in an irrevocable account that is only used to pay for long term care services it is both a Medicaid qualified spend-down and a tax advantaged account.

1)	Tax Status: According to the IRS any tax implications for capital gains realized (e.g. through a policy conversion) would be offset by deductions based on spending the money for “the entire cost of maintenance in a nursing home or home for the aged” (sec. 1016 U.S. Master Tax Code 2008). The Health Insurance Portability and Accountability Act (HIPAA) also carves out an exemption for chronically ill persons to receive benefits tax free, subject to certain limitations.

2)	Medicaid Qualified Spend-Down: According to the Center for Medicare and Medicaid Services (CMS), transferring ownership of a life insurance policy for less than its fair market value would be a violation of Medicaid’s asset transfer and look back requirements. A policy can be surrendered for its cash value to be spent down on care or a policy can be sold for its market value and the benefit of that proceeds can be used to pay for long term care as a qualified spend down. The Long Term Care Benefit Plan is a Medicaid qualified spend-down because the policy receives fair market value and the proceeds are only used to pay for long term care services.

Tax Advantaged Status

A)  Any tax implications for capital gains realized (e.g. through a policy conversion) would be offset by deductions based on spending the money for “the entire cost of maintenance in a nursing home or home for the aged” (sec. 1016 U.S. Master Tax Code 2008). B)   The Health Insurance Portability and Accountability Act (HIPAA) also carved out an exemption for chronically ill persons to receive benefits tax free, subject to certain limitations. A chronically ill person is someone who has been certified by a physician in the past 12 months:

1) to be unable to perform, as the result of the loss of functional capacity, at least two activities of daily living (eating, toileting, transferring, bathing, dressing, and continence) for at least 90 days; or

2) has a similar level of disability as defined by the Secretary of the Treasury; or

3) requires substantial supervision to protect the person from threats to health and safety due to severe cognitive impairment.

For chronically ill persons, amounts paid with respect to a life insurance contract are excludable only if: 1) the payment is for actual costs of qualified long term care that are not defrayed by insurance payments or otherwise; and 2) payment is not made for expenses that are reimbursable under Medicare. In addition, payments made to chronically ill persons on a per-diem, or other periodic basis, are excludable but only to the extent that they do not exceed $180 per day, indexed for inflation.

Medicaid Qualified Spend-Down

A life insurance policy is legally recognized as an asset of the policy owner and it counts against them when qualifying for Medicaid. If a policy has anything more than a minimal amount of cash value (usually in the range of $2,000) it must be liquidated and that money spent towards cost of care before the owner will qualify for Medicaid. All Medicaid applications specifically ask if the applicant owns life insurance and full policy details. Failure to disclose and comply is fraud.

Some states allow for a final expense policy to be kept or transferred to a funeral home (but the funeral home would keep the entire death benefit). Medicaid recovery units have become much more forceful about looking for life insurance policy death benefits (declared and undeclared) that have paid out to families after the death of a Medicaid recipient. Medicaid budgets are now facing extreme pressure and asset recovery efforts can be very aggressive. Recovering the entire cost of care through legal actions against the estate and surviving family to go after the death benefit payment are common.

What are the rules for Medicaid Recovery actions: The Omnibus Budget Reconciliation Act (OBRA) of 1993 defines estate and requires each state to seek adjustment or recovery of amounts correctly paid by the state for certain people with Medicaid. The state must, at a minimum, seek recovery for services provided to a person of any age in a nursing facility, intermediate care facility for the mentally retarded, or other medical institution. The State may at its option recover amounts up to the total amount spent on the individual's behalf for medical assistance for other services under the state's plan. For individuals age 55 or older, States are required to seek recovery of payments from the individual's estate for nursing facility services, home and community-based services, and related hospital and prescription drug services. States have the option of recovering payments for all other Medicaid services provided to these individuals.

People with Medicare are notified of the Medicaid estate recovery program during their initial application for Medicaid eligibility and annual redetermination process. Individuals in medical facilities (who do not return home) are sent a notice of action by their county Department of Social Services informing them of any intent to place a lien/claim on their real property. The notice also informs them of their appeal rights. Estate recovery procedures are initiated after the beneficiary's death.

Can ownership of a life insurance policy be transferred to keep the policy in the family: When an individual applies for Medicaid, the State conducts a "look back" to find transfers of assets for 60 months prior to the date the individual is institutionalized or, if later, the date he or she applies for Medicaid. All transfers made by the applicant or the applicant’s spouse subsequent to January 1, 2010, whether from an individual or to an individual or from a trust or to a trust, have a five year look-back period.

These provisions apply when assets are transferred by individuals in long-term care facilities or receiving home and community-based waiver services, or by their spouses, or someone else acting on their behalf. At state option, these provisions can also apply to various other eligibility groups.

Transferring ownership of a life insurance policy for less than its fair market value would be a violation of Medicaid’s asset transfer and look back requirements. A policy can be surrendered for its cash value to be spent down on care or a policy can be converted for its market value and the benefit of that conversion can be used to pay for long term care as a qualified spend down.

Are there penalties or delays to qualify for Medicaid based on violations of asset transfers and reporting: If a transfer of assets for less than fair market value is found, the State must withhold payment for nursing facility care (and certain other long-term care services) for a period of time referred to as the penalty period.

The length of the penalty period is determined by dividing the value of the transferred asset by the average monthly private-pay rate for nursing facility care in the State. Example: A transferred asset worth $90,000, divided by a $3,000 average monthly private-pay rate, results in a 30-month penalty period. There is no limit to the length of the penalty period.

History

Origination of the Long Term Care Benefit Plan

Founded in 2007, Life Care Funding (LCF) is the originator of the Long Term Care Benefit Plan and is the market leader of this innovative approach to funding Senior Living and Long Term Care. LCF specializes in converting the death benefit of an in-force life insurance policy into a Long Term Care Benefit Plan to cover the costs of skilled nursing home care, assisted living, home health care, and hospice. LCF works with agents/advisors and thousands of assisted living, nursing home and home health providers across the United States to help families convert their life insurance policy into a Long Term Care Benefit Plan.

Legislative support in the states for use of a Long Term Care Benefit Plan

As of June 2013, eight states have introduced legislation based on Life Care Funding’s Long Term Care Benefit program as a way to encourage more use of Private Pay for Homecare, Assisted Living and Skilled Nursing through the Medicaid Life Settlement conversion of a life insurance policy into a Long Term Care Benefit Plan. The conversion of a life insurance policy to pay for long term care is already the legal right of every owner of a life policy in the U.S.—but most don’t realize it and are too quick to abandon a policy to jump onto Medicaid. The states that have introduced this groundbreaking legislation are California, Florida, Kentucky, Louisiana, Maine, New Jersey, New York and Texas. Among these states, Texas is the first to enact the legislation into law.

Medicaid Life Settlement

This article is about state laws supporting a Medicaid Life Settlement conversion of a life insurance policy into a Long Term Care Benefit Plan.

By the mid-point of 2013; eight states had introduced legislation based on Life Care Funding’s program as a way to encourage more use of Private Pay for Homecare, Assisted Living and Skilled Nursing through the conversion of a life insurance policy into a Long Term Care Benefit Plan. This practice is already the legal right of every owner of a life insurance policy in the U.S.—but most don’t realize it and are too quick to abandon a policy to jump onto Medicaid. The states that have introduced this groundbreaking legislation are California, Florida, Kentucky, Louisiana, Maine, New Jersey, New York and Texas. Among these states, Texas is the first to enact the legislation into law.

The new Medicaid Life Settlement law does two things: Specific requirements for the Benefit Plan to be Medicaid Qualified
 * 1) Grants authority to the Medicaid department to inform and educate citizens that they can convert life insurance policies into a Medicaid qualified Long Term Care Benefit Plan to remain private pay and choose any form of long term care they want instead of abandoning a policy to go straight onto Medicaid.
 * 2) To qualify, the Long Term Care Benefit Account must be an irrevocable, FDIC insured account that makes payments directly to the care provider; the person must be able to choose the form of care they want; a funeral benefit must be preserved; and if there is any unpaid account balance when the person dies it must go to the designated account beneficiary.
 * A schedule evidencing the total amount payable, the number of payments and the amount of each payment required to be paid for long term care;
 * All proceeds must be held in an irrevocable state or federally insured account;
 * The lesser of five percent (5%) of the face amount of the life insurance or $5,000 is reserved as death benefit payable to the estate or beneficiary;
 * And, the balance of payments required under the contract unpaid at death of the must be paid to the estate or a named beneficiary.

State Bill Numbers

Policy Conversion Bills introduced (as of June, 2013):
 * CA- SB 214
 * FL- HB 535
 * KY- HB 314
 * LA- HB 545
 * ME- LD 1092
 * NJ- A 4168
 * NY- A 7952
 * TX- HB 2383 (enacted into law)

Legislative History


 * 2009: Conning & Company released a research paper about the evolution of the life settlement industry. In it, they specifically analyzed the growing use of converting life insurance policies to pay for long term care services.  They surmised that there would be an alignment of interests between owners of life insurance policies, providers of long term care services and state governments to find ways to encourage the use of the full market value of a life insurance policy to pay for long term care as an alternative to the lapse or surrender of a policy to go onto Medicaid.  “What is new is the concerted effort to integrate life insurance policies and long term care providers.  This is a recent development involving – Life Care Funding.  This new source of funds represents a potential alignment of long term care providers and state governments. Both state governments and the long term care industry are working to find a solution to the budgetary threat to Medicaid created as aging Baby Boomers impoverish themselves in order to have the state pay for long term care.”  Conning & Company, Strategic Research Series (October, 2009)
 * 2010: NCOIL unanimously passed the Life Insurance Consumer Disclosure Model Law. Conversion of a life insurance policy to a Long Term Care Benefit Plan is one of the approved options in the Model Law. "It is imperative that policy holders understand that they have alternatives to merely lapsing or surrendering their policy. The model would require a clear notice to consumers… including conversion to long term care.”  NCOIL President Rob Damron (KY)
 * 2011: Connecticut introduced study bill SB-1153 as “an act establishing a task force to study life insurance policy and annuity conversions and the provision of certain notifications by life insurance companies”.
 * 2012, Hawaii passed study bill, SB-2455 to “establish a task force to assess and make recommendations regarding the use of viatical settlements and accelerated death benefits as means of funding long-term care”.
 * 2012: Louisiana passed study bill SCR-66, “To establish an advisory work group within the Department of Insurance to examine options that may be available to allow an insured under a life insurance policy or contract holder of an annuity to fund long term care benefits.”
 * 2012: the state of Florida passed HB 5001, to “to examine methods to allow an insured under a life insurance policy or the contract holder of an annuity, to convert the policy or annuity to a long term care benefit. The agency shall submit a report of findings and activities of the workgroup, including recommendations and proposed legislation, no later than January 15, 2013.”
 * 2012: Florida State University Center for Economic Forecasting and Analysis released study analyzing the cost savings of policy conversions to pay for Long Term Care “scored” at $150 million annually. Florida State University Center for Economic Forecasting and Analysis, Scoring Medicaid Savings of HB 1055:  Conversion of Life Insurance Policies to Long Term Care Benefit Plans in Florida, published January, 2012
 * January 2013: Florida Agency for Health Care Administration (AHCA) releases legislative report and bill language to Florida Legislature recommending use of life insurance policies to defray costs of Medicaid.
 * June 2013: eight states had introduced “Medicaid Life Settlement” legislation to educate policy owners about this option to remain private pay and to codify the Long Term Care Benefit Plan structure that would protect the funds from the Medicaid Life Settlement and ensure that it would only be used to pay for long term care services: California, Florida, Kentucky, Louisiana, Maine, New Jersey, New York and Texas. Texas is the first to enact the legislation into law.

Legislative Advocacy to develop the Law

Life Care Funding has worked with the National Conference of Insurance Legislators (NCOIL), the Florida Medicaid Department, the Florida and Texas Health Care Associations, AARP, the insurance industry, and the life settlement industry led by Coventry First and LISA to develop this private pay funding option to provide important consumer protections and ensure that it is recognized as a Medicaid Qualified spend-down. Since 2010, Life Care Funding has testified before NCOIL, the state legislatures of Florida, Texas, Maine, a special joint meeting of the New Jersey Medicaid and Insurance Departments, and provided expert testimony before legislative workgroups in Florida and Louisiana. Life Care Funding has published numerous studies and spoken across the country about the importance of making sure the owner of a life insurance policy understand that they are better off using a Medicaid Life Settlement to convert it into a Long Term Care Benefit Plan instead of lapsing or surrendering their policy to go directly onto Medicaid.

What does this mean? It means that states are now passing laws endorsing conversion of life policies to pay for long term care services because they are realizing the importance of unlocking the hidden value in life insurance policies before the owner allows it to lapse or surrender. The option to convert a policy to pay for long term care is available in all states, and now notification laws are being introduced and passed to make sure people are informed that this program is an accepted part of a Medicaid spend-down.

According to the Florida Health Care Association: ''Due to the Medicaid spend-down path, seniors currently in need of Medicaid long term care services must either cash surrender or outright abandon their policies. By allowing seniors to use the value of their life insurance policies to pay for much needed Medicaid long term care services, HB 535 / SB 794 will give seniors more choice, including whether to receive care at home for a longer period of time or cover their nursing facility care costs if that type of medical care is more appropriate.''

Supreme Court Ruling on Life Insurance as Transferable Property

The Supreme Court case of Grigbsy v. Russell (1911) established the policy owner’s right to transfer an insurance policy. Justice Oliver Wendell Holmes noted in his opinion that life insurance possessed all the ordinary characteristics of property, and therefore represented an asset that a policy owner could transfer without limitation. Wrote Holmes, “Life insurance has become in our days one of the best recognized forms of investment and self-compelled saving.” This opinion placed the ownership rights in a life insurance policy on the same legal footing as more traditional investment property such as stocks and bonds. As with these other types of property, a life insurance policy could be transferred to another person at the discretion of the policy owner. This decision established a life insurance policy as transferable property that contains specific legal rights, including the right to:
 * Name the policy beneficiary
 * Change the beneficiary designation (unless subject to restrictions)
 * Assign the policy as collateral for a loan
 * Borrow against the policy
 * Sell the policy to another party
 * Convert the policy to a Long Term Care Benefit Plan

The right of an individual to name as beneficiary or assign the ownership of a life insurance policy to whomever they should chose was firmly established as a matter of law in 1911 by Associate Justice Oliver Wendell Holmes. Justice Holmes' decision in the matter established that: ''…life insurance has become in our days one of the best recognized forms of investment and self-compelled saving. So far as reasonable safety permits, it is desirable to give to life policies the ordinary characteristics of property. To deny the right to sell except to persons having such an interest is to diminish appreciably the value of the contract in the owner's hands. …the policy having been taken out for the purpose of allowing a stranger association to pay the premiums and receive the greater part of the benefit, and having been assigned to it at once. …it has been decided that a valid policy is not avoided by the cessation of the insurable interest, even as against the insurer, unless so provided by the policy itself.''

Advocates in support of the law


 * “Our goal at Emeritus is to ensure that seniors are properly cared for, and part of that goal is to help families with the financial decisions and details involved in caring for their loved ones,” said Jayne Sallerson, Executive Vice President at Emeritus Senior Living. “Many seniors and families are unaware that their life insurance policies are valuable assets and can be used in this way, and as a result some let active policies lapse. We hope that we can help educate seniors about their resources, so that more seniors can have access to the long term care that they need.”


 * “One of the biggest challenges families face when moving into a long term care facility is the monthly expenses. For millions of seniors with a life insurance policy, they now have an option available to convert a portion of the death benefit into a benefit that can cover these costs. The current economic conditions have compounded the problems some families face when it comes to paying for the costs of senior living or long term care. Most people do not realize that a life insurance policy is an asset that they are legally entitled to convert into another form of coverage,” said Ron Aylor, Senior Vice President at Brookdale Senior Living. “The Life Care Benefit Plan gives people a quick and simple option to convert a life insurance policy’s death benefit into a life care benefit and immediately apply it toward covering the costs of long term care residing in a Brookdale community."


 * “I believe it could be a win for Medicaid service recipients, a win for the fiscal soundness for Medicaid, it could be a win for potential beneficiaries under life insurance policies and I think it could be a win for long-term care service providers," said Jack McRay, a spokesman for the Florida AARP.


 * “Texas is the first state to enact this important legislation to stimulate more private pay dollars by encouraging the conversion of a life insurance policy into a private market Long Term Care Benefit Plan,” said Rep. Rob Damron (KY), “but they are not the only state to recognize the importance of making sure that the owners of a life insurance policy are informed of their right to convert their policy as an alternative to abandoning the policy and going directly onto Medicaid. We introduced this legislation in Kentucky and expect passage during next year’s 2014 legislative session.”


 * "We believe this legislation is a win-win solution that will save taxpayer dollars while preserving the funding facilities need for care delivery and maintaining a stable workforce,” FHCA Executive Director, Ed Reed.


 * “Right now life insurance policies are being abandoned, so the senior can receive Medicaid. If passed, both the state and the policy holder would benefit. It’s pretty innovative. … It should be a win-win all the way around,” Rep. Jimmy Patronis (R-FL) said.


 * Alan Buerger, CEO of Coventry First, lauded the legislation saying, "This legislation is a private-sector solution to a public policy crisis in our nation today," adding that "Life settlements have always been pro-consumer, and are now increasingly considered a socially responsible investment. Investors in life settlements are now directly enabling individuals to meet their long term care needs, while helping states offset the growing costs of Medicaid." Mr. Buerger concluded by saying, "This is a new target area for life settlements, which have traditionally focused on policies that are larger than the policies in this arena. But the convergence of the long term care needs of seniors, the pressures on long term care providers and the exponential growth of Medicaid spending by States and the Federal government is another opportunity for life settlements to provide value to more and more Americans. We see this as a logical expansion of a maturing life settlement market."


 * “This legislation creates a way for individuals to fund some long-term care costs from the proceeds of the sale of their life insurance,” said Lifeline Program President and CEO Wm. Scott Page. “Currently, they have to surrender their policies and receive nothing in return. Under the new law, many individuals will receive thousands of dollars that they can use to pay private medical providers of their choosing. It’s groundbreaking legislation.”


 * Chris Orestis, CEO of Life Care Funding explained, “Eight states have introduced long needed consumer protection laws to stimulate private pay by making sure seniors are informed of their legal rights. Texas is the first state to enact this important law and many more will follow.  By converting a policy, the senior will remain private pay longer and be able to choose the form of care they want which is in their best interest and it will save tax payers’ money.”

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http://www.businesswire.com/news/home/20110222006304/en/Emeritus-Senior-Living-Life-Care-Funding-Group

http://www.thestreet.com/story/11017688/1/emeritus-senior-living-and-life-care-funding-group-partner-to-provide-financing-options-for-long-term-care.html

https://www.retirementliving.com/RLletterarchive_211.html#brookdaleseniorliving