By Dr. James M. Dahle, WCI Founder
One of the worst pieces of legislation I have ever seen was passed in 2019 by the Washington state legislature and signed into law by Gov. Jay Inslee. The law forces every resident of Washington to EITHER buy Long-Term Care Insurance (LTCI) OR pay a payroll tax of 0.58% on earned income. The deadline for this law (Jan. 1, 2022) is rapidly approaching and the deadline for opting out is already here (Nov. 1, 2021). Predictably, this law has had a ton of unintended consequences, not the least of which is the fact that you haven't been able to buy LTCI in the great state of Washington for months. To make matters worse, other states are reportedly considering similar laws.
Why Did Washington Pass the Law Requiring Long-Term Care Insurance?
The law started with good intentions. Lawmakers realized that lots of people need Long-Term Care (LTC) and very few people can actually afford it. The vast majority of people who need LTC pay for it through the Medicaid program which, for those who are not aware, is a jointly funded program between the federal government and state governments. In Washington state, the federal government currently pays for 88% of it and the state pays for 12% of it. The idea behind this new law was to save $3.9 billion over 30 years in state Medicaid costs, although it is unclear to me how much of that “saved” $3.9 billion was supposed to come from money raised from this new tax and how much of it was supposed to come from people not needing Medicaid to pay for their LTC because they bought insurance to avoid paying the tax.
The tax was coupled with a new program that provides a lifetime benefit of up to $36,500 in “home healthcare and an array of services related to long-term healthcare including equipment, transportation, and meal assistance.”
The Washington Cares Act Fund Director Ben Veghte says, “Long-term care insurance has been around for four decades and they’ve never managed to cover more than 7% of the population. That’s never proved to be an affordable product for the middle class.”
Well, that's true. LTC is really expensive. So the LTCI that pays for it is going to be really expensive, too. Since the median American household has an income of around $60,000 per year and the median 50-year-old has retirement savings of something like $150,000, Veghte is right. People can't afford LTC or LTCI. Apparently, the state government doesn't like the federal government's solution to this program (Medicaid) and thinks its program is better. I'm not really convinced.
Although the purpose of this post is not necessarily to criticize the Washington program itself (more the way the funding for the program has been rolled out), it has quite a few hoops to jump through in order to qualify.
Eligibility Requirements for Washington Care Act Benefits:
- First, despite paying the tax starting in 2022, you don't actually qualify for benefits for 10 more years. That's right. You're paying the taxes, but you're not getting any sort of insurance benefit for doing so for the first decade.
- Second, you have to work at least 500 hours per year to get credit.
- Third, you can't stop working for more than five years total, or three of the last six years, and still get your benefit. Even if you've already paid in for 10+ years!
- Fourth, if you're close to retirement, you get a little break, but only if you claim the benefit within three years of stopping working.
- Fifth, a private nursing home room in Washington costs $11,000 a month, but this program only covers $3,000 a month.
- Sixth, if you work in Washington but live in Oregon or Idaho, you still have to pay the tax. But you can't have the benefit. Also, if you live in Washington now but then retire to another state, you can't have the benefit. Sorry.
The only exclusions are federal employees (I guess because the feds have an LTCI-like benefit) and people that have LTCI purchased prior to November 1, 2021.
You can't make this stuff up.
How White Coat Investors Deal with LTC Costs
For years, Americans have dealt with LTC costs in the following ways:
#1 Hope and pray you never need LTC and
#2 If you do end up needing LTC, choose how to take care of that based on your wealth and marital status:
- If unmarried, spend down (paying for LTC) to Medicaid levels and then have Medicaid pay after that
- If married but with wealth less than $200,000-$500,000, spend down to Medicaid levels
- If married with wealth of perhaps $200,000 to $1.2 million-$2 million, buy LTCI
- If married with wealth > $1.2 million-$2 million, self-insure against this risk
Over the years, I've hoped that most white coat investors would find themselves in that fourth category by their 50s, the time when most people consider buying LTCI. Essentially, the only WCIers I've recommended LTCI to are those in the “donut hole” who don't want to impoverish their surviving spouse due to their LTC costs. Beyond this issue of whether to self-insure, LTCI has never really been ready for primetime. In the beginning, companies charged too little and then went out of business before the people who bought their policies ever needed them. These days, the policy premiums are likely to be raised to unaffordable amounts before you need the benefits. It's just a really problematic area of the insurance world.
Buy Insurance or Opt-Out and Pay the Tax?
So what's the issue? Government is always coming up with new programs and, of course, those programs have to be funded. How else would they be funded besides a new tax? The issue was this ability to opt-out of the tax caused a lot of high earners to buy insurance products they would otherwise not purchase. At a certain level of income, it's cheaper to buy LTCI than it is to pay the tax. Consider a couple making $800,000 per year.
$800,000 x 0.58% = $4,640
That's a lot of money. How much does LTCI cost? Well, let's first figure out what kind of policy qualifies for the exemption. Per the law itself:
“(5) ‘Long-term care insurance' means an insurance policy, contract, or rider that is advertised, marketed, offered, or designed to provide coverage for at least twelve consecutive months for a covered person. Long-term care insurance may be on an expense incurred, indemnity, prepaid, or other basis, for one or more necessary or medically necessary diagnostic, preventive, therapeutic, rehabilitative, maintenance, or personal care services, provided in a setting other than an acute care unit of a hospital. Long-term care insurance includes any policy, contract, or rider that provides for payment of benefits based upon cognitive impairment or the loss of functional capacity.
(a) Long-term care insurance includes group and individual annuities and life insurance policies or riders that provide directly or supplement long-term care insurance. However, long-term care insurance does not include life insurance policies that: (i) accelerate the death benefit specifically for one or more of the qualifying events of terminal illness, medical conditions requiring extraordinary medical intervention, or permanent institutional confinement; (ii) provide the option of a lump sum payment for those benefits; and (iii) do not condition the benefits or the eligibility for the benefits upon the receipt of long-term care.
(b) Long-term care insurance also includes qualified long-term care insurance contracts.
(c) Long-term care insurance does not include any insurance policy, contract, or rider that is offered primarily to provide coverage for basic Medicare supplement, basic hospital expense, basic medical-surgical expense, hospital confinement indemnity, major medical expense, disability income, related income, asset protection, accident only, specified disease, specified accident, or limited benefit health . . .
(8) “Qualified long-term care insurance contract” or “federally tax-qualified long-term care insurance contract” means:
(a) An individual or group insurance contract that meets the requirements of section 7702B(b) of the internal revenue code of 1986, as amended; or
(b) The portion of a life insurance contract that provides long-term care insurance coverage by rider or as part of the contract and that satisfies the requirements of sections 7702B(b) and (e) of the internal revenue code of 1986, as amended.”
If you go to Section 7702B(b) of the internal revenue code, you find that the policy must pay a benefit of $175 per day, or $63,875 per year.
Per the American Association for Long-Term Care Insurance, average policy costs in 2020 were:
So this theoretical couple making $800,000 is actually better off buying insurance ($3,050 premium < $4,640 tax) than they are paying the tax. Not only do they pay less overall, but they theoretically get the benefit of having some (admittedly unnecessary) insurance to boot! Easy decision (assuming you can actually get LTC insurance, that is).
However, since most people make less than $800,000, they are faced with a dilemma. Do I pay the tax or do I buy insurance? If you are a single, healthy, 65-year-old man with an income of $100,000, you can get insurance for $1,400 a year or you can pay a tax of $580 a year. Which is better? Much harder to say.
It gets even more confusing when the insurance agents start getting involved. You see, you don't have to buy LTCI to avoid the tax. You can also buy a life insurance policy with an LTC rider or even an annuity with an LTC rider.
Lovely. My three least-favorite insurance products all combined together. I would hope that the vast majority of white coat investors could avoid all three of them. Now you see why I hate this piece of legislation. If you want to pay for a new social program, just raise the darn taxes. Don't combine your new tax with some sort of boon to the sleaziest part of the financial services industry and force people into all kinds of weird financial dilemmas.
Unintended Consequences of the Washington State LTC Program
Naturally, Washingtonians rushed to buy long-term care insurance. The state program clearly wasn't very good, so they might as well get some better insurance instead of paying that tax. Insurance carriers saw the number of applications go up by 48X. I don't know about your business, but no business I have ever been associated with could handle that sort of sudden increase in demand, especially if it just going to be a short-term bump. However, Forbes columnist Howard Gleckman hypothesized that the insurance companies pulled out of the market for two other reasons:
#1 The purchasers were way too enthusiastic. They feared the risk pool would worsen since those who buy LTCI are typically those most likely to need it.
#2 Insurance companies were worried (with good reason) that Washingtonians would just purchase a policy to opt-out of the state plan and then cancel their coverage once they officially received their LTCI exemption (duh, of course they're going to do that if the state allows it). That would be bad for the companies, since they would not be getting ongoing premiums, and potentially bad for the Washingtonians, who would have neither a private LTC policy nor the backstop of the public program. The only winners? You guessed it! The agents selling the insurance products and pocketing the commissions.
So the companies started telling the brokers they would have to pay back the commission if the policy was canceled in less than a year. Voila! The companies don't want to sell it. The brokers don't want to sell it. And for months, nobody has been able to buy it—even people who would have bought it without this goofy law being put in place. The legislature just put the kibosh on an entire industry. #unintendedconsequences
Long-Term Care Insurance Substitutes
So Washingtonians could no longer buy LTCI and have not been able to for months. So where do people turn? That's right, entirely different insurance products they would have never considered if not for this law. Some universal life insurance policies have a long-term care rider attached to them. A single premium policy averages $75,000. So for $75,000 or so, you have a policy and it has a long-term care rider that allows you to get out of the tax. NerdWallet uses the following example:
“Combination policies differ, but here’s a hypothetical example for a MoneyGuard II policy from Lincoln Financial: a 60-year-old female nonsmoker pays a single $100,000 premium for up to $453,783 in long-term care benefits, or about 4.5 times the premium. Long-term care benefits could pay out for up to six years, at up to $6,303 per month. If she never used the policy for long-term care, it would pay a death benefit of $151,261 to her beneficiary. And after year 5, she could get her $100,000 back if she didn’t want the policy any longer and hadn’t used any of the long-term care benefits.”
Pretty hard to get excited about that, but is it surprising that agents can use fear of this tax to sell policies like this? Their sales pitch goes like this, “Well, you'll get out of the tax and save a few thousand a year. If you need LTC, this will pay for it at least for a while, and if you don't, you can leave the death benefit to your kids as an inheritance.” I think most wealthy people looking at that proposition would say, “Well, I can buy this policy, cancel it in five years and only lose the earnings on my $100,000 (maybe $50,000), and never pay the tax, at least until the Legislature catches on.” Honestly, I think most WCIers would still just pay the tax. Note that accelerated death benefit riders and critical illness benefit riders do not count with Washington.
The other option is to purchase an annuity with a long-term care rider. Some people like that option because, like single premium life insurance, it's one lump sum and you're done. No ongoing LTCI premiums. It might be an especially nice option if you could buy a tiny little annuity and qualify to opt-out of the tax. I spoke with one agent in Washington who said he had heard people were buying annuities as small as $35,000 and qualifying, but his company didn't sell them. He also told me that not long after LTC policies became unavailable, so did life policies and annuities with LTC riders. No surprise, I suppose.
Can You Really Cancel Your LTC Policy?
It seems that you can (there is no penalty for doing so in the law), but that tactic would really only work until you change jobs. Each new employer will ask for proof of LTCI when they are doing your onboarding paperwork. If you don't have it, they'll withhold the tax from your paychecks.
What Should You Do About the Washington Cares Fund If You Live There?
At this point, it's too late to buy an LTC policy, a life insurance policy, or even an annuity and then cancel it in a few months. The deadline is Nov. 1, 2021. I think the law is absolutely ridiculous that it even allows you to opt-out of a tax permanently by owning a policy for just a few months anyway. I suspect the law will be modified in the future eliminating that option, but who knows.
I think the best perspective to take here is that this is just another tax. It's a payroll tax, so it goes away when you stop working and it does not apply to anything but earned income. It might make an S Corp a little more attractive than it otherwise would be, but Congress is in the process right now of making S Corps dramatically less attractive in every state by eliminating their primary benefit.
While I encourage you to write your state legislators, at this point I think you should just pay your tax and feel good about your tax dollars perhaps eventually helping out a few of your fellow Washington residents with their long-term care costs. Maybe someday you might even see a little benefit from the program yourself.
If you are in another state and this happens in your state and you want to opt-out, do it as soon as the law passes. When the masses find out about the opt-out option, the insurers will probably stop selling policies relatively quickly. Hopefully, other states learn from Washington's mistake and either choose not to allow an opt-out or simply do not pass the law at all.
What do you think? If you are in Washington, what did you choose to do? Did your practice put a group LTCI policy in place? Did you buy a policy yourself? Did you buy a life insurance policy or annuity with a rider? Are you just planning to pay the tax? Give us the details in a comment below!