A 3-judge panel at the 11th Circuit Court of Appeals has rejected an appeal filed by a Florida woman who wants a long-term care insurance (LTCI) to provide home health care benefits.
The woman, Edith Sherman, says she is getting care in her personal residence, which happens to be in an assisted living facility (ALF).
The insurer, Transamerica Life Insurance Company, contends that the facility is a kind of long-term care (LTC) facility, not a place that would count as a home according to the terms of the policy it issued to Sherman.
A federal district court agreed with the insurer, and the 11th Circuit upheld the district court ruling in an opinion that is posted on the appellate court website but not considered officially published. The opinion was attributed to the court, not to one of the judges who considered the case.
Representatives for Transamerica Life, a unit of AEGON N.V., The Hague, Netherlands, were not available to comment on the ruling.
Steven Dunn, a Bay Harbor Island, Fla., lawyer who helped represent Sherman, said he and his client are disappointed by ruling.
"It's not consistent with Florida law and how seniors transition through life as they age," Dunn said in an interview. "An assisted living facility is someone's home as a matter of Florida law."
Because Sherman's policy is not paying benefits, her family is having to pay for her care, Dunn said.
When Sherman applied for coverage, the court says, she could choose from a menu of three options:
- "Integrated Facility and Home Care Insurance.”
- "Faci1ity Only Insurance."
- "Home Care Only Insurance.”
The first option was supposed to provide coverage wherever the insured was living, the facility-only provided coverage in either a nursing home or an ALF, and the home care policy provided coverage only in the insured's own home, the court says.
Sherman chose the home care policy.
"On her application, Sherman expressly acknowledged that she was applying for home-care only coverage and that
she understood that the 'coverage is designed to provide benefits for home health care services and does not provide coverage for confinement in any nursing home or assisted living facility,'" the court says. "Where the application required her to provide, in her own handwriting, the reason she was choosing a home care only policy, Sherman wrote
that the premiums associated with the policies that cover care in a facility are 'too high' for someone at her age."
Sherman later moved into an ALF and has been receiving care there.
Sherman sued for breach of contract when Transamerica denied the claim.
"We are unpersuaded by Sherman’s claim that Florida law dictates that the definition of 'home' in the policy must include ALFs," the court says. "As an initial matter, there is no dispute that the policy’s provisions plainly and unambiguously provide coverage only when the insured resides 'at home,' and not when residing at an ALF."
The Transamerica policy "defines 'home' as 'any place where [the insured] reside[s] other than a nursing facility, Alzheimer’s facility, hospital, hospice facility, assisted livingfacility, congregate care or any other similar residential care facility,'" the court says. "Thus, the policy unambiguously excludes ALFs from the definition of 'home' and does not cover expenses incurred while the insured resides in an ALF."
Dunn said he has represented plaintiffs in other LTCI cases that he believes to be similar to the Sherman case.
Those cases hinged on the definitions of the terms "home care" and "home health care," rather than "home," and the clients in those cases succeeded at getting benefits paid, Dunn said.
In the other cases, Dunn said, the clients prevailed by showing that an ALF could function as a home health agency.