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26 USC 7702B interpretation of 90 days disabled


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Guest Stepper

Sec. 7702B©(2)(A) (Treatment of qualified long-term care insurance), defines the term "chronically ill individual" to mean any individual who has been certified by a licensed health care practitioner as—

(i) being unable to perform (without substantial assistance from another individual) at least 2 activities of daily living for a period of at least 90 days due to a loss of functional capacity. The activities of daily living (ADL) include: Eating, Toileting, Transferring, Bathing, Dressing, and Continence.

First issue: I believe this clause has been interpreted to mean that the incapacitating conditions "are expected to" last at least 90 days, although I have not found anything authoritative on the interpretation. The condition must be certified by a physician. The interpretation makes sense because it weeds out those conditions which are merely temporary and not the purpose of a long-term care policy. Also, since the deductible (called the "elimination period") is stated in terms of 30 days, so it does not make sense to define the disabling condition as retroactive 90 days.

Second issue: what if the disabling condition is permanent but the patient is not expected to live more than 90 days? Can the doctor certify the patient is expected to be disabled under the ADL conditions for 90 days if the doctor knows the condition is totally disabling but the patient is unlikely to live more than 60 days, and the treatment plan is hospice. The Policy benefits include a hospice facilty benefit.

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