Attorney General's Opinion

Attorney General, Richard Blumenthal

May 3, 2000

Honorable Senator M. Adela Eads
State Capitol
Hartford, CT 06106-1591

Senator Eads:

Thank you for your recent letter requesting an opinion from this office on issues pertaining to the case of Sheila Tyrrell. I have read through the materials that you attached to your request, including Attorney Peter Tyrrell’s brief. I am truly sorry for the suffering that Sheila is experiencing as a result of her affliction, and Peter Tyrrell’s pain as he bears witness to the decline of a loved one.

With this in mind, I reviewed the questions that you have presented to me as follows:

  1. Must an HMO medical plan, the terms and conditions of which contain a custodial care exception, offer a plan to the public, after receiving Department of Insurance approval, that: (a) meets the requirements of CGS 38a-553(c)(10), (b) complies with CGS 38a-478 et seq., as from time to time amended, and Article XXI of the Connecticut Constitution, and (c) does not use rehabilitation or improvement as criteria in determining whether care for disabled persons or persons suffering from biologically-based mental illnesses or nervous conditions is to be considered custodial?
  2. Must the external appeal panel, acting pursuant to CGS 38a-478n, when reviewing appeals certified by the Department of Insurance and which construe or involve the custodial care exception (CGS 38a-553(c)(10)) as applied to disabled persons or persons suffering from biologically-based mental illnesses or nervous conditions (CGS 38a-478 et seq., as from time to time amended): (a) apply said CGS 38a-478 et seq. and Article XXI of the State Constitution, and (b) not use rehabilitation or improvement as tests for custodial care?

Your questions relate to Conn. Gen. Stat. §38a-553(c)(10). Through its enactment of this provision in 1975, the Connecticut legislature specifically and clearly allowed health insurance companies to exclude coverage for prolonged care required by persons who find themselves individually unable to conduct daily activities due to a debilitative condition. Section 38a-553(c)(10) reads as follows in relevant part:

Plans providing minimum standard benefits need not provide benefits for the following: . . . (10) any charge for services or articles for custodial care or designed primarily to assist an individual in meeting his activities of daily living . . . .

The language employed in this section, "need not provide benefits," is not mandatory in nature, nor have there been any court decisions regarding its constitutionality. As you know, a statute is presumed constitutional absent a demonstration to a court of law that it clearly violates constitutional principles. Tryiano v. Zoning Commission, 155 Conn 265, 269 (1967). Indeed, a statute must be shown to be unconstitutional beyond a reasonable doubt. Wilson v. Connecticut Product Development Corporation, 167 Conn 111, 114 (1974). In this case the presumption would be that Section 38a-553(c)(10) does not violate Article XX1 of the State Constitution, or, by extension, would the action that it expressly permits, i.e., the exclusion in a health benefit plan of coverage for custodial care. The materials which you have provided me do not provide a basis for concluding that the presumption of constitutionality would be overcome, if the statute was challenged.

Thus, under the facts presented in this case, the legislature of this state has specifically authorized health insurers to exclude coverage for custodial care, which Physician’s Health Care has in fact done in Mr. Tyrrell’s health insurance plan, with the result that benefits have been denied to Sheila Tyrrell. Consequently, if the type of care administered to Sheila Tyrrell and others faced with similar tragic circumstances is viewed by the legislature as care that should be covered in health insurance plans, the legislature must amend Section 38a-553(c)(10) to mandate coverage for custodial care.

Historically, the Connecticut legislature has addressed the issue of financing long-term care by mandating the creation of a program known as the Connecticut Partnership for Long-Term Care. See Conn. Gen. Stat. §§§ 17b-251, 17b-252 and 38a-475. This program established a means by which an individual can purchase a certified long-term care insurance policy commensurate with his assets. At a time of need, this policy would be combined with Medicaid funding to protect the beneficiary's assets. Assets in the value of the policy are neither considered for Medicaid eligibility purposes, nor subject to collection by the state to pay for medical expenses. Bills have been introduced in the legislature to encourage individuals to participate in such plans through a variety of tax credit and deduction mechanisms.

I am well aware of the many public policy issues surrounding a possible legislative mandate for the coverage of custodial care in standard health insurance policies, but considering the plight of Mr. and Mrs. Tyrrel -- shared, unfortunately, by many other families -- custodial care coverage should again be considered by the Connecticut legislature. I would be more than happy to participate in this process and provide you with whatever assistance you may require. Thank you again for contacting me regarding this matter.

Very truly yours,



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