Category: Insurance Coverage

Weather & Climate Risk Management Part IV: Taxation of Weather Risk Management Products

Are there differences in the way in which weather derivatives and weather insurance are taxed?

Yes. Weather insurance products, including parametric insurance, are taxed as insurance; and derivatives are taxed in accordance with the tax rules applicable to the particular type of derivative product held by the taxpayer. A business needs to carefully consider these tax differences to determine the best product or products to meet its weather risk management needs.

How is insurance taxed to a policyholder?

When a business buys weather insurance, it pays a premium to the insurance company so that the company assumes the business risks set out in the policy. Assuring the policy is purchased to manage a business’s legitimate weather-related risk, the premium is deductible under Internal Revenue Code (Code) § 162 as an ordinary and necessary business expense.

If insurance coverage is triggered and a policyholder receives a payout under the policy, the payout is not taxable up to the policyholder’s tax basis if the payment reimburses the policyholder for property damage or loss. In other words, payments under insurance policies are not taxable up to the policyholder’s tax basis because the payments simply restore (in whole or in part) the policyholder to the financial position it was in before it incurred the loss. If the reimbursement amount under the policy exceeds the policyholder’s tax basis, the amount it receives over its tax basis is treated as taxable income.[1]

Business interruption insurance covers losses (such as lost profits and ongoing expenses) from events that close or disrupt the normal functioning of the policyholder’s business. The payout amount is often based on past business results. Business interruption insurance proceeds are likely to be taxable to the policyholder because they compensate the policyholder for lost revenue.

To ensure that a policyholder receives the most favorable tax treatment, it must carefully document its business purpose for entering into the insurance, the amount of its tax basis, and receipt of the insurance proceeds.

How are derivatives taxed?

It depends on whether the taxpayer has entered into a futures contract, forward contract, option, swap, cap, or floor. The taxpayer must then consider its status in entering into each derivative: is it acting as a hedger, dealer, trader, or investor? The taxpayer must also determine whether it has made all the required tax identifications and elections. In dealing with derivatives, the taxpayer must go through this three-step process for each product it is considering. Hedgers and dealers receive ordinary income and loss on their derivative transactions, while traders and investors receive capital gain and loss.

Why might a taxpayer want to be treated as a hedger with respect to its weather derivatives?

A taxpayer seeking to use weather derivatives to manage its weather-related business risks typically wants to be treated as a tax hedger so that the gain or loss on its derivative transactions qualify as tax hedges. This would allow the taxpayer to match its derivative gains or losses with its weather-related income or losses. Because ordinary property generates ordinary income or loss, a business hedger typically wants to receive ordinary income or loss on its weather derivatives. In other words, a hedger wants to match the tax treatment it receives on its hedges with that of the items it is hedging. Many risk management transactions with respect to weather-related risks do not meet the hedge definition (see the discussed below). For a detailed discussion of the tax hedging rules, see the forthcoming Q&A with Andie, “Business Taxation of Hedging Transactions.”

What is required for a weather derivative to be treated as a tax hedge?

To qualify as a tax hedge, the transaction must manage interest rate fluctuations, currency fluctuations, or price risk with respect to ordinary property, borrowings, or ordinary obligations.[2] In addition to meeting the definition of a tax hedge, the taxpayer must comply with the identification requirements set out at Code §§ 1221(a)(7) and 1221(b)(2) and the tax accounting requirements set out at Treas. Reg. § 1.446-4.[3]

What is the tax analysis that a taxpayer should conduct to determine if its weather derivatives qualify as tax hedges?

When entering into a weather derivative, a taxpayer should conduct the following tax analysis: (1) is the transaction entered into in the ordinary course of its trade or business (2) primarily (3) to manage price risk (4) on ordinary property or obligations (5) held or to be held by the taxpayer. If the answer to all of these questions is “yes,” then the taxpayer has a qualified tax hedge if—but only if—it complies with all of the required identification rules set out in Code §§ 1221(a)(7) and 1221(b)(2) and as explained in Treasury Regulation § 1.1221-2. If the taxpayer cannot answer all of these questions with a “yes,” then the weather derivative transaction is not a tax hedge, and it is subject to the tax rules that apply to capital assets.[4] The requirement that a taxpayer must be hedging ordinary property, borrowings, or obligations means that favorable tax hedging treatment is not available for many legitimate weather risk management activities.

What types of assets, obligations, and borrowings qualify as ordinary property and ordinary obligations for purposes of the tax hedging rules?

Weather derivatives qualify as tax hedges if they can be tied to price risk with respect to ordinary assets or ordinary obligations. In many situations, however, weather derivatives are entered into to manage a taxpayer’s anticipated profitability, sales volume, plant capacity, or similar issues. These risks are not the transactions that receive tax hedge treatment.

Ordinary property includes property that if sold or exchanged by the taxpayer would not produce capital gain or loss without regard to the taxpayer’s holding period. Items included in a taxpayer’s inventory—such as natural gas or heating oil held by a dealer in those products—are treated as ordinary property that can be hedged. Qualifying hedges can also include hedges of purchases and sales of commodities for which the taxpayer is a dealer, such as electricity, natural gas, or heating oil. If a utility agrees to purchase electricity at a fixed price in the future, for example, the utility is exposed to price risk if it cannot resell the fixed-price electricity for at least the amount it paid to purchase that electricity. Accordingly, the utility could agree to sell electricity under a futures contract (short position) that would qualify as a tax hedge.

On the liability side of a business, the hedge could relate to a taxpayer’s price risk with respect to an ordinary obligation. An ordinary obligation is an obligation the performance of which (or its termination) would not produce a capital gain or loss. For example, a forward contract to sell electricity or natural gas at a fixed price entered into by a dealer is treated as an ordinary obligation. In addition, a utility that enters into a fixed price forward sales contract agreeing to sell electricity at a fixed price has an ordinary obligation to deliver electricity at that fixed price.

What sorts of weather derivative transactions are not tax hedges?

Many legitimate risk management activities do not qualify as tax hedges. Weather derivative transactions that protect overall business profitability (such as volume or revenue risk) are not directly related to ordinary property or ordinary obligations. As a result, weather derivatives entered into to protect a business’s revenue stream or its net income against volume or revenue risk are not tax hedges.

Many taxpayers in the normal course of their businesses enter into weather derivatives to manage volume or revenue risks of reduced demand for their products or services. These transactions are not tax hedges. The taxpayer is not managing a price risk (either current or anticipated) attributable to ordinary assets, borrowings, or ordinary obligations.

Take, for example, a ski resort or amusement park operator that enters into a weather derivative to protect itself against adverse weather conditions that are likely to result in a reduction in the number of skiers or amusement park visitors. The taxpayer’s risk management efforts in these cases either relate to its investment in its facility (which for the most part consists of real estate and business assets that are not taxed as ordinary assets) or to its expected revenue. Similarly, a power generator that hedges its plant capacity or its revenue stream with a weather derivative tied to the number of Cooling Degree Days would not meet the definition of a tax hedge.

Why don’t more weather derivatives qualify as tax hedges?

As part of Congress’ efforts to modernize the tax rules with respect to hedging, it specifically authorized the Treasury to issue regulations to extend the hedging definition to include other risks that the Treasury sets out in regulations.[5] The Treasury, unfortunately, has not proposed or issued any regulations extending the benefits of tax hedging. This means that weather derivative transactions entered into to manage weather-related volume or revenue risks do not qualify as tax hedges. In this situation, the taxpayer receives capital gain or loss on the derivative product.

What are some examples of weather derivatives that can qualify as tax hedges?

A weather derivative qualifies as a tax hedge if it manages the taxpayer’s price risks with respect to ordinary assets or obligations. Thus, a taxpayer entering into weather derivatives primarily to manage its price risk with respect to increased supply costs will meet the definition of a hedging transaction. Such a transaction manages the taxpayer’s price risks with respect to ordinary property.

If, for example, a commodity dealer buys a put option (or sells a call option) on a designated weather event to protect it against price risks with respect to its existing inventories or future fixed-price commitments, the dealer has entered into a qualified tax hedge, provided it meets the identification requirements.

A heating oil distributor with heating oil inventory (or forward contracts to purchase heating oil at a fixed price) might enter into a weather swap to protect itself from the risk of an unseasonably warm heating season. This swap should qualify as a tax hedge because the swap manages the distributor’s risk of a decline in the market price for its heating oil inventories (or a decline in its fixed-price forward contract purchase commitments) due to unseasonably warm weather.

If an electric utility enters into forward commitments to sell electricity at fixed prices for delivery in the summer cooling months, it may buy a call option on a designated weather event that would qualify as a tax hedge to the extent the option protects the utility against the risk of being unable to acquire or generate the electricity at a low enough price if the demand for electricity in the cooling season is higher than expected because of unseasonably warm weather resulting in higher electricity prices.

Conclusion

All organizations face weather and climate risks. As part of their enterprise-wide risk management, they have available to them a number of weather risk transfer tools. This series on weather and climate risk provides a detailed review of weather risk management. Organizations can look to standardized futures and option contracts traded on regulated commodity exchanges; they can enter into customized OTC weather derivatives designed with their specific weather risks in mind; they can put in place indemnity insurance; they can purchase parametric insurance; or they can mix and match multiple derivative products and insurance coverages to meet their specific organization’s needs. In Part I of this Q&A series on Weather & Climate Risk Management, we considered the landscape and context within which weather and climate decision making takes place, along with the overarching risk management approaches and principles that apply. In Part II, we looked at the details on the various weather risk management products. In Part III, we addressed the regulation of these products; and in Part IV, we reviewed the taxation of these various classes of products.

[1] Taxability is subject to a nonrecognition provision at Code § 1033(a) if the taxpayer complies with the requirements to purchase “qualified replacement property.” https://irc.bloombergtax.com/public/uscode/doc/irc/section_1033

[2] Treas. Reg. § 1221-2 and Code §§ 1221(a)(7) and 1221(b)(2).

[3] For a detailed discussion of the tax hedging rules see my forthcoming Q&A with Andie, “Business Taxation of Hedging Transactions” due out in Spring 2024.

[4] If the taxpayer is a dealer or a commodity derivatives dealer, the weather derivative would be an ordinary asset in the taxpayer’s hands.

[5] Code § 1221(b)(2)(A)(iii).

© 2024 ASKramer Law
For more news on the Taxation of Weather Risk Management Products, visit the NLR Environmental, Energy & Resources and Tax sections.

Insurance — Do You Know What’s in Your Bank’s Policies?

There are many different types of insurance — directors and officers (D&O), employment practices liability (EPLI), and general liability, to name a few. Unfortunately, many clients do not know what is in their policy or policies, including what is covered, their deductibles or retention, or, in some unfortunate cases, that they have no policy at all.

This article attempts to help you answer some simple questions about what to look for when you are buying a policy and what to look for in a current policy when you need to use it. It is not an attempt to promote any particular policy, as each policy has to be read in light of the specific facts at issue.

Buying the cheapest — you may get what you pay for.

In too many cases, we find that clients have simply purchased the cheapest policy they can find. The reasons for this vary. Maybe the client asked for the cheapest policy, maybe the agent simply got the client the cheapest policy, or maybe there was no real conversation at all between the insured (client) and the agent except to “get some insurance.”

This is never an issue — until it is. By way of example, let’s say a lawsuit is filed against you that should kick in your D&O or EPLI policy. You then turn the lawsuit over to your agent for defense and coverage. And then, one of several increasingly common scenarios occurs. You discover that your deductible or retention is very high, e.g., the first $100,000 is on you. Or you discover that many employment cases could be resolved or dismissed for less than that, and that for a little more on the front end, you could have had a lower deductible. Or you discover that what you purchased does not cover alleged fiduciary breaches by your directors and officers, and you could have purchased that coverage if you had asked.

You also might discover that you could have purchased, for a small additional amount, wage and hour coverage that would have covered the overtime lawsuit you were just served, but no one ever specifically talked with the agent about that. You also might discover that the attorney you have worked with for years will not be able to handle the case because there is no “choice of counsel” in the policy. In many cases, spending 30 minutes with your agent (and probably an attorney who has experience working with you) could have resolved these issues — that now are out of your control.

The point is, spending the necessary time with your agent (and attorney) is something that should be done before any policy is purchased or renewed. This allows you to express what you want and consider the options available. It also allows you to avoid issues such as not being able to use the attorney of your choice.

Do you have a claims-made or an occurrence policy?

While each policy and case must be examined individually, generally, an occurrence policy covers claims arising from acts or incidents that occurred during the policy period. This means that if the incident occurred during the policy period and the policy was in effect and in good standing, the claim will be covered, even if you get sued over that incident after the policy has expired.

Claims-made policies are entirely different animals. Claims-made policies generally cover only claims made during the policy period. The claim must also be reported to the insurer as required by the policy.

Generally, claims-made policies are cheaper, as they usually provide coverage for a shorter period of time. Again, however, be aware of “going cheap.” Claims-made policies that are not renewed or are canceled — and for which tail coverage is not purchased — can create exposure for an incident that occurred during the policy period. This can happen, for example, if you simply let the policy lapse and a year or so later someone files a suit against you that would have been a “claim” under your claims-made policy but it was not reported when the policy was effective. It can also occur if you change insurers.

The above is a very general description, and any discussion about the type of policy you should buy or what to do when you renew is beyond the scope of this article, but you should absolutely consult with your agent (and likely your attorney) about any specific needs or concerns you know of prior to purchasing or renewing any policy.

Do you have coverage and defense, or just defense?

Be aware that some policies provide for attorney’s fees and costs to defend claims made against you as well as coverage for any settlement or judgment against you. Some policies, however, only provide for attorney’s fees and costs. Again, this goes to what type of policy you want, what you can afford, and knowing the risks of what you have versus what you do not have.

I have had the unfortunate situation where a client thought they had a policy providing coverage and defense, but the policy provided only defense. The matter involved multiple plaintiffs and conflicting witness testimony that made dismissal of the case prior to any trial impossible. While the resolution of the case was not substantially out of line for the average federal court employment case, the money came directly from the client’s pocket because the policy only provided for defense costs, not coverage for any settlement or verdict. When questions arose about why that type of policy was provided by the agent, it was clear the client had only told the agent to “get some insurance” and made no specific requests.

To sum up, it is unfortunately common that when purchasing insurance of any kind, insureds do not actively engage their agent (or ask for any advice from their attorney) about what types of policies and coverage they may need. This creates many issues (deductible, choice of counsel, lack of coverage, etc.) that likely could have been avoided. There is no guarantee that any issue could be avoided, as no one knows what type of claim or claims might be made in the future, but spending the necessary time on the front end could save many headaches on the back end if your agent gets as much specificity as possible from you.

© 2024 Jones Walker LLP
by: Joseph (Jojo) Lee Adams of Jones Walker LLP
For more news on Insurance Policies, visit the NLR Insurance Reinsurance & Surety section.

Concussions and Their Impact: Recognizing the Signs and Seeking Help

A concussion is a mild form of traumatic brain injury and is usually caused by blunt force to the head. In some cases, it can result from a back-and-forth jerking of the head, resulting in the brain matter being dashed against the skull wall. It’s a pretty common injury in children, individuals engaged in contact sports, and Michigan car accidents.

Most concussions are not life-threatening. However, some cases can develop complications that could significantly impact a victim’s life. So, the first step in getting timely treatment is understanding its symptoms and what you ought to do after suffering an injury.

Signs and Symptoms of a Concussion

Symptoms and signs of a concussion fall into three categories: physical, cognitive, and psychological or emotional.

PHYSICAL SYMPTOMS

Where a significant blow to the head causes a concussion, the victim could pass out for a few seconds. However, this is not always the case, so you cannot use passing out as the litmus test for concussions. Often, patients exhibit symptoms like headaches, nausea and vomiting, blurred vision, dizziness, loss of balance, slurred speech, fatigue, ringing ears, tingling in the hands, loss of taste or smell, etc.

COGNITIVE SYMPTOMS

With a concussion being a brain injury, it is unsurprising that it may cause problems with brain function. In some patients, a concussion will cause problems with concentration, confusion, forgetfulness, feeling slowed down in your thinking, and trouble finding words.

EMOTIONAL SYMPTOMS

A concussion can, in some patients, cause emotional problems, resulting in a deviation from a person’s normal behavior. For example, patients may become easily irritable, report feeling foggy or “out of it,” experience immense sadness, and have anxiety.

When to See a Doctor

In most cases, symptoms of a concussion will start to show immediately after an accident, in which case seeing a doctor makes absolute sense. However, concussions are among the few types of injuries that tend to have delayed onset. In some cases, it can take up to 72 hours or even more for the first signs of a concussion to show.

If you are in an accident where you have suffered a blow to the head or are violently shaken, it is always a good idea to see a doctor. You may not have to call 911 if your symptoms are not as severe, but it is best to see a doctor on the same day or within 72 hours of an accident at most.

Timely medical interventions help in several ways. It helps stop the deterioration of an injury, shortens recovery time, and provides the documentation necessary for filing a personal injury claim if you intend to seek compensation.

What to Do To Recover Damages

Once your health is taken care of, focus on evidence gathering, starting with scene documentation in pictures and video. If there were any witnesses to the incident, talk to them, record their statements, and get their contacts so you can easily trace them if you need help with your case. If it is a car accident, you will need to get the other driver’s insurance and vehicle registration details.

Besides evidence, you need to prepare for the legal battle. It doesn’t always have to go all the way to court, but you will still need to work with a personal injury lawyer to get the best chances at recovering fair compensation.

Personal injury lawyers bring knowledge, investigation and evidence-gathering skills, negotiation skills, and respect, which altogether help you in mitigating mistakes and increasing your chances of getting a fair outcome.

Buckfire & Buckfire, P.C. 2024
For more news on How to Handle a Concussion, visit the NLR Health Law & Managed Care section.

CMS Issues Calendar Year 2023 Home Health Final Rule

On November 4, 2022, the Centers for Medicare & Medicaid Services (CMS) published the calendar year 2023 Home Health Prospective Payment System Rate final rule, which updates Medicare payment policies and rates for home health agencies.  Some of the key changes implemented by the final rule are summarized below.

  • Home Health Payment Rates. Instead of imposing a significant rate cut, as was included in the proposed rule released earlier this year, CMS has increased calendar year 2023 Medicare payments to home health agencies by 0.7 percent or $125 million in comparison to calendar year 2022.

 

  • Patient-Driven Groupings Model and Behavioral Changes. A -3.925 percent permanent adjustment to the 30-day payment rate has been implemented for calendar year 2023. The purpose of this adjustment is to ensure that aggregate expenditures under the new patient-driven groupings model payment system are equal to what they would have been under the old payment system. Additional permanent adjustments are expected to be proposed in future rulemaking.

 

  • Permanent Cap on Wage Index Decreases. The rule finalizes a permanent 5 percent cap on negative wage index changes for home health agencies.

 

  • Recalibration of Patient-Driven Groupings Model Case-Mix Weights. CMS has finalized the recalibration of the case-mix weights, including the functional levels and co-morbidity adjustment subgroups and the low utilization payment adjustment thresholds, using calendar year 2021 data in an effort to more accurately pay for the types of patients home health agencies are serving.

 

  • Telehealth. CMS plans to begin collecting data on the use of telecommunications technology under the home health benefit on a voluntary basis beginning on January 1, 2023, and on a mandatory basis beginning on July 1, 2023. Further program instruction for reporting this information on home health claims is expected to be issued in January of 2023.

 

  • Home Infusion Therapy Benefit. The Consumer Price Index for all urban consumers for June 2022 is 9.1 percent and the corresponding productivity adjustment is a reduction of 0.4 percent. Therefore, the final home infusion therapy payment rate update for calendar year 2023 is an increase of 8.7 percent. The standardization factor, the final geographic adjustment factors, national home infusion therapy payment rates, and locality-adjusted home infusion therapy payment rates will be posted on CMS’ Home Infusion Therapy Services webpage once the rates are finalized.

 

  • Finalization of All-Payer Policy for the Home Health Quality Reporting Program. CMS has ended the temporary suspension of Outcome and Assessment Information Set (OASIS) data collection on non-Medicare/non-Medicaid home health agency patients. Beginning in calendar year 2027, home health agencies will be required to submit all-payer OASIS data, with two quarters of data required for program year 2027. A phase-in period will occur from January 1, 2025 through June 30, 2025, and during that time the failure to submit the data will not result in a penalty.

 

  • Health Equity Request for Information. The comments received from stakeholders providing feedback on health equity measure development for the Home Health Quality Reporting Program and the potential future application of health equity in the Home Health Value-Based Purchasing Expanded Model’s scoring and payment methodologies are summarized in the final rule.

 

  • Baseline Years in the Expanded Home Health Value-Based Purchasing (HHVBP) Model. For the Expanded Home Health Value-Based Purchasing Expanded Model, CMS is: updating definitions, changing the home health agency baseline calendar year (from 2019 to 2022 for existing home health agencies with a Medicare certification date prior to January 1, 2019, and from 2021 to 2022 for home health agencies with a Medicare certification date prior to January 1, 2022); and changing the model baseline calendar year from 2019 to 2022 starting in 2023.

For more Health Care legal news, click here to visit the National Law Review.

Copyright © 2022 Robinson & Cole LLP. All rights reserved.

California Enacts Legal Protections for Cannabis Insurance Providers

Several cannabis-related bills were signed by California Governor Gavin Newsom on September 18, 2022, including Assembly Bill 2568 (AB 2568), which clarifies that it is not a crime for individuals and firms licensed by the California Department of Insurance (CDI) to provide insurance or related services to persons licensed to engage in commercial cannabis activities. Though the California Civil Code was amended in 2018 to clarify that cannabis is the legal object of a contract, and it has been tacitly understood that insurance contracts are legal in California, the intent of this new law is to remove any uncertainty and to encourage further growth of admitted insurance products for California cannabis businesses.

AB 2568 adds section 26261 to the California Business and Professions Code, which states in relevant part: “An individual or firm that is licensed by the Department of Insurance does not commit a crime under California law solely for providing insurance or related services to persons licensed to engage in commercial cannabis activity pursuant to this division.”

Intent of the Law

The California Assembly’s Committee on Insurance explained the intent behind AB 2568 in a report issued earlier this year:

“The hesitancy of insurance providers to provide insurance for commercial cannabis is attributed to risk, since cannabis is classified as a Schedule I substance under the Federal Controlled Substances Act. Therefore, much of the insurance available in California is from surplus lines. This does not align with the federal government’s longstanding determination that it is in the public’s interest for states to regulate their own insurance marketplaces. Further, the argument has been refuted in federal case law brought about in Green Earth Wellness Center v. Attain Specialty Insurance Company (2016), which established that federal classification of cannabis is not relevant in an insurance provider’s determination to write an insurance policy.

It is important that commercial cannabis businesses have multiple options for insurance as they pursue licensure. AB 2568 clarifies that writing insurance for commercial cannabis does not constitute a crime, since cannabis is part of a legal, regulated market in California. This clarity will provide assurances to admitted insurers that they will not be in violation of any regulations and encourage them to provide an insurance product.”

In addition, AB 2568 was strongly supported by CDI, which argued that “we must provide commercial cannabis businesses with multiple, affordable options for insurance as they pursue and maintain state licensure.” CDI supports AB 2568 in part to “promote reliable insurance coverage for all aspects of these cannabis businesses to ensure that these businesses can continue to flourish just like any other business in this state.”

In a separate analysis, the California Senate Committee on Insurance inquired as to whether the bill would achieve the intended result of expanding insurance options for cannabis businesses. It concluded:

“This bill expressly states a protection under California Law for CDI licensees. This protection has been implied since the legalization of recreational cannabis in 2016, and in that same year a federal court gave a nod to insurers that writing cannabis [insurance] is permissible, but only one admitted company has fully waded into the market. On the one hand, insurers are famously risk averse, so this express statement of state law may go a long way for some to take the risk to sell cannabis coverage. But, federal illegality of cannabis could always be the larger barrier to entry for some companies than what the state laws say.”

The Senate report concludes that more study is needed to “consider additional efforts to effectuate the stated goal of growing the domestic market for cannabis insurance.”

Analysis

AB 2568 does not materially change existing California law since providing insurance services to properly licensed California businesses has been legal under state law since at least 2018. The bill, however, is meant to remove any lingering doubt on the topic and to encourage more insurance service providers to enter the market.

As we have previously reported, it is reasonable to conclude that the risk-benefit calculus has adequately shifted to justify entrance into the cannabis market without an unreasonable fear of prosecution. This certainly is true for the insurance industry.

Congress continues to prohibit the Department of Justice and other federal agencies from spending money to prosecute conduct that complies with state medical marijuana laws. Federal law enforcement, meanwhile, has not initiated any prosecution against a plant-touching or ancillary business involved in either adult-use cannabis or medical marijuana where the underlying marijuana business activity was compliant with state law and there was no other independent violation of law.

Despite this favorable outlook, it must be acknowledged that, without a change to the status quo, some degree of theoretical legal risk remains present for any plant-touching or ancillary business in the marijuana industry. Any decision to provide insurance-related services to the cannabis industry must be based on a well-informed understanding of the legal risks and the very challenging operating environment for state-licensed cannabis companies.

For more Food and Drug Legal news, click here to visit the National Law Review.

© 2022 Wilson Elser

Hurricane Coming? Know Your Insurance Policy

As we prepare for Hurricane Ian in Tampa Bay and throughout Florida, one important item on your checklist for both your personal and business hurricane preparation plan should be to be aware of your hurricane/windstorm coverage in your insurance policies. While we all hope to avoid major impact or damage from the storm, even minor damage may be covered under your insurance policy. However, the conditions of your insurance policy may require that you report claims prior to doing anything other than emergency repairs. As such, a review of your policies before the storm may not only be helpful to learn what damages are covered but may also avoid taking steps that compromise what would otherwise be covered claims.

Know Your Deductibles

Florida statutes protect homeowners from unexpectedly declining windstorm/hurricane coverage, but allow insurance companies to set a different (and usually higher) deductible for claims related to hurricanes. These deductibles can be as high as 10% of the policy limits for the property/dwelling coverages and may also apply to claims discovered in the days immediately after the hurricane. Knowing your deductible will allow you to gain a more accurate understanding of your potential claims following a hurricane.

For your commercial lines, you should be sure to review your policy to ensure you have windstorm coverage and again check to see if a higher deductible applies.

Whose Policy Applies and What Coverages Apply

If you are on an active construction site, you likely have a general liability policy. But these liability policies are unlikely to cover the more common losses caused by a windstorm or hurricane. Common hurricane claims are more likely to be covered under a builder’s risk policy. As you prepare your project site for the storm, you should determine who has purchased the builder’s risk insurance and review that policy to see what coverages are available in the event of a loss.

Depending on the terms of your builder’s risk policy, there may be coverage for soft costs such as delays, expedited construction costs, consultant costs and possibly even attorney’s fees. Knowing your coverages before a claim arises will ensure that you are able to receive the insurance benefits that were purchased.

Be Prepared to File a Claim

As many insurance policies require claims to be reported promptly after a loss and even before work is done to repair the loss, being prepared to file a claim before the storm hits will allow you to maximize your chance of recovery under the applicable insurance policies…it may also provide you with some peace of mind in a stressful situation. Good practices include identifying a point person with knowledge of the policy to inventory any potential damage and document the same with photographs, videos, and notes. Also, know who you need to report any claims to and what evidence or documentation is needed to report a claim. Know what types of damages will allow for emergency repairs and what claims need to be reported to the carrier before work can be started. And take pictures of your property before the storm hits so that you can show before and after pictures of the property.

While knowing your available insurance coverage is an important item in your hurricane preparations, the most important thing in any storm is to be safe and take all reasonable precautions to keep you, your loved ones, and those around you safe. From all of us at Hill Ward Henderson, we hope and pray that Hurricane Ian passes without major impact to our community.

For more insurance law news, click here to visit the National Law Review.

© 2007-2022 Hill Ward Henderson, All Rights Reserved

How Technological Advances Possibly Affect Automobile Insurance Policy Holders in New Jersey

In the 1970’s, “no-fault” insurance laws were enacted in New Jersey and several other states in response to criticism regarding the time-consuming and costly process of determining who was at-fault when an accident occurred. 

No fault insurance laws sought to streamline the claims process.  One key feature allowed insurers to pay for medical treatment of their injured policyholders.  This allowed for timely treatment and provider payment.  NJ automobile insurance policies offered up to $250,000 in coverage for medical treatment.  Recent changes in law now allow insureds to choose less coverage for medical treatment.

Further, recent technological advances change the way insurance customers choose coverage online.  While customers are served by the ease, flexibility, and pricing of policies through internet platforms, some adverse consequences naturally flow.  In this article, we discuss the changes, the consequences and subsequent response from participants and 3rd parties to address these outcomes.

Background

In the 1960’s, many more vehicles were entering into American roadways than in previous decades.  Baby boomers were coming of age and more cars were sold than ever before.  A natural consequence was automobile accidents and as a result, the necessary adjudication of which party caused the collision.

Insured and insurers alike expressed criticism of the process which consisted of petitioning the civil court system to resolve disputes.  In response, state legislatures adopted laws designed to streamline the process, and the 1970’s, many states adopted policies allowing injured accident victims to recover damages from their own auto insurance policies.

Almost half of the United States now have similar laws where policyholders are entitled to “benefits” from their own policies.  This of course means insurers are on the hook for more compensation, a fact they obviously utilized to lobby legislatures to place certain restrictions on the right to sue for damages not only against the insurer but against the tortfeasor as well.

One of the “trade-offs” made by the legislation was injured parties giving up some of their rights to sue under certain circumstances.

New Jersey No-Fault Law and Application

New Jersey’s no-fault laws have been amended throughout the years.  One of the most profound changes to the law occurred in 1998 with the passage of the Automobile Insurance Cost Reduction Act (“AICRA”).  This change in law gave NJ residents the opportunity to purchase a standard or basic policy.

The standard policy is much like a typical no-fault policy containing Personal Injury Protection (PIP) which pays for medical treatment (more on this in a moment); liability coverage for injury or property damage to another; and uninsured/underinsured coverage which kicks in if the at-fault driver has no or insufficient coverage.

A basic policy provides minimum coverage in certain areas such as personal liability, property damages, and medical benefits.  Because having automobile insurance is mandatory, the purpose of the basic policy was essentially to afford an option to those who simply wanted to follow State mandates.

With regard to the right to sue restrictions, a New Jersey insured was and still is offered a choice – give up the right to sue for “non-permanent” injuries (those with no objective medical evidence of permanency) and have the premium reflect a savings or retain the right to sue (zero threshold) and pay a much higher premium to offset the cost.  Further, one of the things insurers had to trade was that victims would have $250,000 worth of PIP coverage to pay for medical expenses.

Changes to NJ No-Fault Insurance and Consequences

The AICRA changes have been in effect for years.  Since that time, the internet altered the manner in which policyholders interact with insurers when choosing coverages.

The internet streamlines the sales process for many businesses.  Insurance is no different.  What is troubling about this streamlining is the lack of guidance users receive from insurance companies regarding their choice of coverage.

For example, one website asks you to choose between:

  • More Affordable
  • Popular Coverage
  • More Coverage

It is not so much that the choices are misleading – they aren’t.  However, other than these descriptions, there is little explanation of their consequences.  If you choose the “more affordable” option, you’re led to a screen that explains the coverages in more detail.

Do people read all the information?

Can they understand the language even if they do decide to read it?

Could it be that the ease of picking the cheapest option is too much to overcome?

Consider this description from a law firm in Maryland:

“PIP is easy to overlook, especially in this age of online insurance applications. It’s one box out of 200 that you can check. The application will say something like, “Waive PIP and save $57.” The applicant clicks and saves 57 bucks…when in reality, they’ve lost $2,500 if they get in an auto accident. Too many Maryland policyholders waive their PIP coverage. It’s really a good coverage not to waive. “

Likewise, in New Jersey’s Standard Coverage Selection Form, used by insurance companies as a questionnaire to draft a proposed policy, the PIP limits selection form actually lists the savings from choosing lower limit PIP coverage.  Remarkably, no such comparison exists on the Form for reductions in Bodily Injury/Liability limits.

In the old days, an insurance agent was tasked to explain various coverages.  A real human being who would answer questions depicting real word scenarios involving accidents.  This obviously allowed for more informed choices.

Now, a great deal of selling is done online.  Many cost-aware customers might respond only to a difference in price.  Many can and do simply choose the cheaper alternative.  This could cause problems later if an accident occurs and a claim is made.

A Potential Problem with Minimal Coverages

Consider a situation where the insured has the minimum coverages for PIP – $15,000.  The insured sustains a back injury and begins treatment.  The Emergency Room visit totals $6,000 complete with 3 level CT scans which reveal problems with the upper and lower back.  The insured then follows up with an orthopedic who requests MRI scans on the back which equal another $2,500.  Add in some physical therapy and the $15,000 PIP limits are exhausted in a couple of months.

None of this is a problem if the scans fail to reveal a major issue.  A soft tissue injury is serviceable under this scenario in that the insured gets treatment and is on the way to recovery.  If the scans reveal problems, such as multiple herniated discs and impingement on the spinal cord, treatment options become a tricky proposition.

The treatment is tricky because the benefits are gone.  Now the injured party must seek other options – some of these can be costly.

Responding to the Need

In response to the above, providers, lawyers and other market participants stepped in to serve the need for accident victims to secure medical treatment.  The following are some of those alternative payment methods.

Letters of Protection

Letters of protection (LOP’s) are agreements between the injured party’s attorney and a medical provider that the medical bills will be “protected” by the proceeds of any settlement received.  In return for the attorney’s promise to honor the lien against file, medical providers will perform a variety of treatments to the plaintiff, including surgery.  Surgery is often a deciding factor in the plaintiff’s ability to secure the treatment because normally, the case’s settlement value is increased after the procedure.

Use Existing Health Insurance to Pay Bills After PIP is Exhausted

In some instances, plaintiffs can use their own health insurance to pay for accident medical bills.  In NJ, insureds can choose which coverage is primary.  However, some health insurance policies exclude coverage for car accidents.  The standard health insurance limitations apply as well.  These include the need to pay deductibles, co-payments and sometimes co-insurance.  Further, there may be limits on the choice of medical provider.  Some policies require doctors to be “in network”.

Litigation Funding

In many cases, litigation funding is used to pay for much-needed medical treatment.  Originally utilized to bridge the gap between accidents and settlement, litigation funding sought to alleviate the need for plaintiffs to accept low-ball settlement offers simply because they were struggling financially.  Because lawsuit funding is the sale of a portion of the future proceeds of a personal injury case, they are sometimes used to pay for surgical or other procedures when there is no coverage available.

Technological Advances and Practical Trade-offs

Technology has certainly made life more convenient over the years.  Conveniences exist today that weren’t in our collective consciousness 20 years ago.  Consider being able to speak via video conference to someone on the other side of the world for FREE, when the toll charges for an overseas telephone call were many dollars only a short time ago.

But technology can cut both ways.  The ease with which insurance consumers can pick coverages that may or may not be in their best interest may be one such trade-off.  Thankfully, market participants (doctors, lawyers, litigation finance companies) step in and address the outcomes which naturally arise.  Free markets usually perform this function admirably.

Article By Paul M. Coppola of Fair Rate Funding

For more insurance and reinsurance legal news, click here to visit the National Law Review.

© Copyright 2022 Fair Rate Funding

Medicare Advantage: OIG Report Finds Improper Denials

On April 27,2022, the Office of Inspector General of the Department of Health and Human Services (OIG), Office of Evaluations and Inspections, issued a report on the performance of Medicare Advantage Organizations (MAOs) in approving care and payment consistently with Medicare coverage rules. In its review, OIG found that 13% of MAO denials of prior authorization requests should have been approved and that 18% of payment requests from providers were improperly denied. OIG also made a number of recommendations to the Center of Medicare and Medicaid Services (CMS) with respect to its oversight of MAOs.

Purpose and Method of the Study

OIG undertook the study to assess whether MAOs are appropriately providing access to medically necessary services and making payment to providers consistently with Medicare coverage rules. Since CMS pays MAOs principally by capitation, MAOs have a potential incentive to increase their profits by denying access to care of beneficiaries or by denying payments to providers. CMS’s annual audits of MAOs have indicated some persistent problems related to inappropriate denials of service and payment. As enrollment in Medicare Advantage continues to grow, OIG viewed it as important to ensure that medically necessary care is provided and that providers are paid appropriately.

OIG conducted the review by randomly selecting 250 denials of prior authorization requests and 250 payment request denials by 15 of the largest MAOs during a week in June of 2019. OIG had coding experts review the cases and had physician reviewers examine the medical records. Based on these reviews, OIG estimated the rates at which MAOs issued denials of services or payment that met Medicare coverage rules and MAO billing rules. OIG also examined the reasons for the inappropriate denials and the types of services involved.

Standards

MAOs must cover items and services included in fee-for-service Medicare, and may also elect to include additional items and services. MAOs are required to follow Medicare coverage rules that define what items and services are covered and under what circumstances. As the OIG states in the Report, MAOs “may not impose limitations – such as waiting periods or exclusions from coverage due to pre-existing conditions — that are not present in original Medicare.” In following Medicare coverage rules, MAOs are permitted to use additional denial criteria that were not developed by Medicare when they are deciding to authorize or pay for a service, provided the clinical criteria are “no more restrictive than original Medicare national and local coverage policies.” MAOs may also have their own billing and payment procedures, provided all providers are paid accurately, timely, and with an audit trial.

MAOs utilize prior authorization requests before care is furnished to manage care and payment requests from providers to approve payment for services provided. Beneficiaries and providers may appeal such decisions, and beneficiaries and providers are successful in many of the appeals (for a one-time period, as many as 75% of the appeals were granted).

Findings

Prior Authorization Denials

In the study, OIG found that 13% of prior authorization denials were for services that met Medicare coverage rules, thus delaying or denying care that likely should have been approved. MAOs made many of the denials by applying MAO clinical criteria that are not part of Medicare coverage rules. As an example, a follow-up MRI was denied for a beneficiary who had an adrenal lesion that was 1.5 cm in size, because the MAO required the beneficiary to wait one year for such lesions that are under 2 cm in size. OIG’s experts found such a requirement was not contained in Medicare coverage rules and was therefore inappropriate. Rather, the MRI was medically necessary to determine if the lesion was malignant.

OIG also found instances where MAOs requested further documentation that led to a denial of care when it was not furnished, as such additional documentation was not required to determine medical necessity. OIG’s reviewers found that either sufficient clinical information was in the medical record to authorize the care or the documentation requested was already contained in the medical record.

Payment Denials

OIG found in the study that 18% of payment denials fully met Medicare coverage rules and MAO payment policies. As a result of these denials, payment was delayed or precluded for services that should have been paid.

OIG found that common reasons for these inappropriate payment denials were human error in conducting manual reviews (for example, the reviewer not recognizing that a skilled nursing facility (SNF) was an in-network provider), and inaccurate programming.

OIG also found that advanced imaging services (including MRIs and CT scans), stays in post-acute facilities (including SNFs and inpatient rehabilitation facilities), and injections were the services that were most prominent in the inappropriate denials that should have been authorized for care and payment in accordance with Medicare coverage rules.

OIG Recommendations

Based on the study, OIG recommended that:

  • CMS should issue new guidance on both the appropriate and inappropriate use of MAO clinical criteria that are not contained in Medicare coverage rules. In particular, OIG recommended that CMS should more clearly define what it means when it states that MAO clinical criteria may not be “more restrictive” than Medicare coverage rules.

  • CMS should update its audit protocols to address issues identified in the report such as MAO use of clinical criteria and/or examine particular service types that led to more denials. OIG suggests CMS should consider enforcement actions for MAOs that demonstrate a pattern of inappropriate payment denials.

  • CMS should direct MAOs to identify and address the reasons that led to human errors.

CMS reviewed the OIG report and concurred with each of OIG’s recommendations. Those recommendations can affect future coverage decisions as well as utilization of prior authorization tools. AHIP, a national association of health care insurers, challenged the OIG’s sample size as inappropriate to support the agency’s conclusions, and defended prior authorization tools.

Takeaways

Given CMS’s concurrence with the report’s findings, we recommend that MAOs track these issues over the next several months in advance of CMS’s Final Rate Announcement for CY 2024.

MAOs should also be aware of potential False Claims Act (FCA) exposure in this area. FCA exposure can arise when a company seeks and receives payments despite being out of compliance with the basic terms for its participation. If an MAO knew it was denying claims that should be paid because they would be covered under traditional Medicare, but the MAO was still collecting full capitation, it is possible that a whistleblower or the government may pursue FCA liability. This risk warrants attention because whistleblowers can bring qui tam suits under the FCA, with resulting high costs for defense and potentially high penalties if a violation is proven (or settled to avoid further litigation). That said, an FCA suit based on this theory would raise serious questions, including whether any non-payment actually met the FCA’s “knowingly” standard (which includes reckless disregard), or whether any non-payment met the materiality threshold necessary to demonstrate a violation of the FCA.

Article By Alexis Finkelberg Bortniker, C. Frederick Geilfuss II, Matthew D. Krueger, Maureen F. Kwiecinski, and Kinal M. Patel at Foley & Lardner LLP

For more health law and managed care news, click here to visit the National Law Review.

© 2022 Foley & Lardner LLP

Will an Act of War Destroy Your Cyberinsurance Coverage?

Cyberinsurance spurs many complaints from US business. The cost is skyrocketing, retentions (deductibles) are rising quickly, and the insurance companies push their own panel lawyers on customers despite other relationships. Ransomware or email fraud can be excluded from some policies.

But news of significant hacks drives more companies into the cyberinsurance market despite the costs. According to Bloomberg, cyberinsurance prices rose nearly 100% in 2021 and keep climbing. Travelers Insurance, working to justify the leaping costs of its products, lists the following reasons for higher cybersecurity prices: a wave of ransomware, rising breach response costs (from forensic and legal experts to ransom payments and regulatory fines), increasing tech complexity and budgets, inadequate cybersecurity hygiene (which is why better controls can now lead to lower insurance prices), lack of advance response plans, and business interruption expenses. Shutting down business operations may be a way for criminals to force ransom payments, but it also creates an expensive risk reduction system, and all companies are suffering from it.

However, for the price of protection, you would expect your insurance company to pay to remediate a properly-reported cyberattack.  Property insurers have long excluded “acts of war” from insurable damage that would receive payments. Most cyberinsurance policies have similar exclusions. This leads insurance customers to wonder, in a world where hackers and ransomware gangs from Russia and Ukraine initiate a significant percentage of cyberattacks, when would those attacks be considered “acts of war” during a real shooting war? If your company is smacked with ransomware from a Russian crew associated with the Kremlin, will your insurance company exclude the costs from your cyberinsurance policy as an act of war?

Lloyds of London just released a set of new exclusion clauses for addressing cyber war. These clauses are for underwriters to consider placing in Lloyds insurance contracts, and “have been drafted to provide Lloyd’s syndicates and their (re)insureds (and brokers) with options in respect of the level of cover provided for cyber operations between states which are not excluded by the definition of war, cyber war or cyber operations which have a major detrimental impact on a state.” Lloyds specifies that the “act of war” exemption language applies to China, France, Japan, Russia, the U.K and the U.S.  The new clauses supply underwriters with extensive leeway to refuse to pay claims.Importantly, Lloyds can decide that the attack was an act of war even if the attackers do not declare themselves. Pending any government attribution of an attacker, Lloyds can decide through reasonable inference to attribute any attack to state activities, and therefor falling within the “act of war” exclusion.

Property insurers have long excluded “acts of war” from insurable damage that would receive payments. Most cyberinsurance policies have similar exclusions. This leads insurance customers to wonder, in a world where hackers and ransomware gangs from Russia and Ukraine initiate a significant percentage of cyberattacks, when would those attacks be considered “acts of war” during a real shooting war? If your company is smacked with ransomware from a Russian crew associated with the Kremlin, will your insurance company exclude the costs from your cyberinsurance policy as an act of war?

TED CLAYPOOLE

All hope is not lost for businesses relying on cyberinsurance. Courts tend to hold insurers to high standards when trying to avoid paying out claims due to broadly-defined exclusions. For example, earlier this year the Superior Court of New Jersey rules that insurers can’t use a nation-state “act of war” cyber-exclusion to avoid covering more than a billion dollars in damages that Merck claimed it suffered from the NotPetya cyberattack in 2017. According to Insurance Journal, “ The insurers had tried to use the exclusions to avoid paying out, citing the fact the NotPetya malware was attributed to Russia and was meant to be deployed to disrupt and destabilize Ukraine. The malware wound up affecting thousands of companies worldwide. . . The cyber attack also attracted the attention of regulatory scrutiny of so-called “silent cyber” exposure in all policies.” The court “unhesitatingly” ruled that war exclusions did not apply in this instance.

So an attack from Russian hackers in 2021 may be covered under most cyberinsurance policies, but what about an attack in March of 2022? Does the state of hostility between the U.S. and Russian – in which Putin has claimed that sanctions against Russia and providing arms to Ukraine is an act of war – mean that ransomware attacks from the same Russian hackers may be considered acts of war? For example, the Conti ransomware gang has officially announced its full support of the Russian government after the invasion of Ukraine and threatened to use all possible researches to attack both Ukraine and Western countries that might support Ukraine. It would be easy for US critical infrastructure businesses to be direct victims of attacks from Russians supporting the Kremlin, or to be indirect victims of attacks aimed at Ukraine that spread through open networks like NotPetya or other malicious viruses. Where would that leave an affected company if its insurance provider refuses to pay, claiming an “act of war” exclusion?

We simply don’t know many insurance companies will use these policy exclusions and will be allowed to do so by U.S. courts. But each of us should check our cyber insurance policies for exclusions that could be triggered by current international conflicts.

Beyond insurance, international cyberattacks have straddled the line between standard crime and acts of international state hostility. Since the internet connected our world electronically, our societies have not set rules about how public and private actors are allowed to behave toward each other. Brad Smith, the President of Microsoft, has called for a Digital Geneva Convention, so that the nations of the world can agree what acts of electronic aggression are acceptable in war and even which acts should be considered to be acts of war. Maybe the current crisis, where a long-existing state is invaded without provocation, may be the catalyst to discuss digital hostility and set some rules around what kinds of interactions will be tolerated by the international community.

For now, check your cyberinsurance policies.  For posterity, push our politicians to create baseline rules for the digital world.  We have promulgated the law of the sea and the law of space. We should create a law of cyberspace as well.

Copyright © 2022 Womble Bond Dickinson (US) LLP All Rights Reserved.
For more articles on cyberinsurance for your workplace, visit the NLR Cybersecurity Media & FCC section.

Intra-Class Conflict Dooms Auto Insurance Class Action in Fifth Circuit

Last week the Fifth Circuit issued a short opinion that made an important point that does not arise often in class certification decisions. Class certification failed because the plaintiffs’ proposed theory of liability would benefit only some class members and disadvantage others, who would be overpaid if the plaintiffs’ theory were correct. For that reason alone, the plaintiffs could not adequately represent the class.

Prudhomme v. Government Employees Insurance Company, No. 21-30157, 2022 WL 510171 (5th Cir. Feb. 21, 2022) (per curiam) was similar to another case I recently wrote about—the plaintiffs claimed that their insurer undervalued their vehicles that were deemed total losses, in violation of Louisiana statutes. Sidestepping questions about commonality and predominance, which are usually the focus of class certification decisions, the Fifth Circuit affirmed the denial of class certification because the adequacy of representation requirement was not met. This was because “a portion of the proposed class members received payments above (that is, benefitted from) the allegedly unlawful valuation.” According to the district court opinion, an expert witness opined that approximately one-fifth of the class would have received less on the plaintiffs’ theory than they received from GEICO. While the plaintiffs argued that class members who were overpaid on their theory might still be entitled to some damages under Louisiana law, that would likely create a typicality problem. Class representatives cannot adequately represent a class if they offer “a theory of liability that disadvantages a portion of the class they allegedly represent.”

Look out for this type of issue the next time you are litigating a class action. It might be lurking in your case when you peel back the onion.

Copyright © 2022 Robinson & Cole LLP. All rights reserved.
For more articles about class-action lawsuits, visit the NLR Litigation section.