ElderLaw Answers Blog

Republican presidential candidate Mitt Romney has announced his support for raising the age of Medicare eligibility from 65 to 67. However, research suggests that such a move would increase out-of-pocket costs for younger seniors and raise health care costs overall.

Making baby boomers wait two more years before they’re covered by the highly popular Medicare program would indeed save the federal government $5.7 billion in 2014, according to a study by the Kaiser Family Foundation. But at the same time, Kaiser says the change would mean that 65- and 66-year-olds, their employers, other Medicare enrollees, and states would have to cough up an extra $11.4 billion. It’s robbing Peter to pay Paul, except in this case Peter would pay double what Paul would get out of the deal.

The Kaiser study projects that the change would raise premiums by about 3 percent both for all other Medicare beneficiaries and for those covered by private insurance. Medicare premiums would go up because the program would lose its healthiest beneficiaries – 65- and 66-year-olds. At the same time, private insurers would suddenly get an influx of older beneficiaries, driving up their premiums as well. And this assumes the survival of the health reform law, which requires insurers to cover applicants despite preexisting conditions. If the law is repealed, as Romney and other GOP candidates recommend, large numbers of 65- and 66-year-olds would be uninsurable.

Kaiser found that 3.3 million people ages 65 and 66 would pay more out of pocket for health care if they were no longer eligible for Medicare. This prompted the group Strengthen Social Security to calculate that increasing the eligibility age would consume up to 45 percent of a middle-class senior’s Social Security check.

Raising Medicare’s eligibility age is a “savings” our society cannot afford; it would effectively amount to a tax on all health insureds, especially 65- and 66-year-olds.

An outdated estate plan does you no good, so you need to make sure you keep your plan up-to-date. There are certain key life moments when you need to revisit your plan. When you get married — either a first marriage or a remarriage — you will need to update your estate plan. When you have kids, you can use your estate plan to name a guardian for them and to create a trust for them. If your spouse dies or you get divorced, you should make sure your estate plan reflects this. In addition, if your estate increases in value or decreases in value, you may need to evaluate your estate plan to determine if it properly minimizes estate taxes. For more information about updating your estate plan, click here.

Administering an estate can be a big job, but you can help your executor out by writing a letter of instruction. If your heirs can’t find any of your documents or don’t know about all of your assets, they might miss important things. A letter of instruction is not legally binding, but it is an easy way to provide guidance to your heirs. The letter can include names and addresses of important people to contact when you die, the location of important documents, a list assets, passwords and PIN numbers for online accounts, and anything else you can think of that might help your heirs get a handle on your estate. For more information, click here.

There is more to estate planning than just drafting a will. A good estate plan should be designed to avoid probate, save on estate taxes, protect assets if you need to move into a nursing home, and appoint someone to act for you if you become disabled. To achieve these goals, almost every estate needs to include a will and a power of attorney at the very least. The will directs where your assets will go after you die and allows to appoint a guardian for your children. A power of attorney appoints someone to act on your behalf if you become incapacitated. Another common estate planning component is a trust, which is useful for avoiding probate, among other things. Medical directives allow you to appoint someone to make medical decisions on your behalf. All these components need to work together to form a complete plan. For more information, click here.

According to an article in The Boston Globe, the National Committee to Preserve Social Security and Medicare and other advocacy groups for seniors are opposing a proposal by Sen. Max Baucus to cut future increases in Social Security benefits by changing the way cost of living increases are calculated.

According to the Social Security Administration, the changes could lower benefits for a typical beneficiary by $1,400 a year by the time he reaches age 95, due to the compounding nature of the cuts.

While I believe that everyone has to pitch in solve the financial situation in which we find ourselves, including seniors, investment bankers, and the rest of us, any cut in Social Security benefits must both be part of an overall deal in which everyone participates and be calibrated to protect those most in need of the benefits.

On the second point, I would propose a different approach to reducing Social Security cost of living increases.  Instead of cutting the rate for everyone, we should limit the annual dollar increase.  Since increases are based on a percentage of the prior year’s benefit level, such a limit would cut into the increase for those receiving the larger Social Security payment more than those receiving smaller payments.  Presumably, those with a higher benefit level are more likely to have other sources of income and more savings, making them better able to adjust to a benefit that does not quite keep up with inflation.

As we have reported, the Obama administration has decided not to implement the Community Living Assistance Services and Supports (CLASS) Program, part of the health reform law that created a public long-term care insurance program to help those who need assistance with daily living to stay out of nursing homes. But following that announcement there has been a great deal of confusion as to the program’s actual status.

Although the office assigned to implement the program has been shut down, the administration has tried to clarify its message and emphasize the need for more policy work on the CLASS program, leaving advocates scratching their heads. At the same time, Republican members of Congress are calling for immediate repeal of CLASS, something the White House says it will resist.

“The President of the United States promised to implement this program, and until we hear something different directly from the White House, we will expect him to keep that promise,” Advance CLASS executive director Connie Garner said in a joint statement with Larry Minnix, CEO of LeadingAge, which represents non-profit long-term care providers. “The actuarial report established that CLASS can be implemented sustainably. The specific steps it recommends may not be perfect, but provide plenty of ideas for continued development and eventual implementation of a sustainable program.”

The two groups are organizing a national call-in to remind the administration that it is bound by law to implement the CLASS Act. The call-in number is 855-218-2109. For details, click here.

Meanwhile, with the CLASS program at least temporarily suspended, it’s now clearer than ever that long-term care is “the one major health expense for which nearly all Americans are uninsured,” as the Associated Press wrote in an October 24 article. Nearly 7 in 10 people will need some level of long-term care after turning 65, and one in 20 will need five years or more in a nursing home. With these sorts of odds of financial devastation, families should be meeting with elder law attorneys today to plan for tomorrow. To find a qualified elder law attorney near you, click here.

The administration has announced that it will drop part of health care reform known as the CLASS Act, an attempt to provide long-term care to all of those Americans who cannot afford long-term care insurance.  It was Senator Edward Kennedy’s final legacy, something he had worked towards for years, if not decades.

Unfortunately, this public long-term care insurance was enacted as an opt-in program, meaning that each taxpayer would choose whether to participate.  This pretty much doomed it to failure, since rather than being a broad-based plan in which every American participates, only those who are older and sicker would be likely to opt in.  With fewer people paying in, and a high percentage of those participating seeking benefits — higher than the population at large — the administration apparently could not make the math work.

Too read more about the CLASS Act, click here.

This is one more example of the federal government being unable to come up with a long-term care plan for the nation.  At the same time, as Jane Gross recently wrote in The New York Times, Medicare spends billions of dollars on ill-advised care for people at the end of life.  How about spending less on heroic medical care when all hope is lost, and more on making an individual’s final months or years more comfortable and not so financially devastating?

Click here to read Jane Gross’s column.

Along these lines, we’ve often wondered why the United States spends more on medical care than any other developed country with worse results in terms of our citizens’ health.  The answer may be the fact that we have medicalized all care.  The United States is more on par with other developed countries in terms of its combined spending on health care and social services.  Perhaps if we spent less on medical care and more on social services, such as home care, we would have better results for our citizens.

Click here for an article on comparative health and social service spending.

A power of attorney allows you to chose someone to act for you if you become incapacitated. A health care proxy allows you to chose someone to make medical decisions for you. But what if the people you named can’t access your medical records? The Health Insurance Portability and Accountability Act (HIPAA) protects health care privacy and prevents disclosure of health care information to unauthorized people. HIPAA authorizes the release of medical information only to a patient’s “personal representative.” To avoid any confusion over who has access to your medical information if you are incapacitated, your power of attorney and health care proxy should contain a HIPAA clause. You should also sign HIPAA releases to give your agents access to your information. For more information, click here.

Choosing a nursing home for a family member can be one of the most difficult decisions anyone ever has to make. The fact that the family member needs to move to a nursing home means that he or she is in a vulnerable state and will be dependent on the care provided in the facility. Following are 44 questions (we counted them so you don’t have to!) that should help a family choose the best facility in an unfortunate situation:

• Is the facility certified by Medicare and Medicaid? How long has it been certified?
• Does the facility have an Alzheimer’s unit or other special care area restricted to patients with special care needs? Is the specialty unit separated from other areas of the facility?
• How convenient is the location to family members and friends? What are visiting hours? Location is important, because it can affect how often the patient is visited by family and friends. Frequent visits generally will improve the patient’s mental and emotional well being, as well as ensure that quality-of-care issues can be addressed as problems arise.
• Is the facility well lit, clean, safe, and welcoming? What diagnostic treatment facilities are available at the facility? What bathing facilities are available and how is bathing handled when the person needs assistance?
• What is the ratio of staff to residents during each shift?
• What kind of activities are planned each day for the residents? A good activities program should have regularly scheduled events, such as a weekly movie or musical event (even if it is just a “sing along” ), religious services, physical exercise activities (exercise classes or even dancing), bingo, educational classes, and other social events. Is there a library available for residents with large print and audio books? Is there a small for “store” for purchasing personal items, such as shaving cream, hair care products, and snacks? Is there a safe place for residents to enjoy outdoor areas, such as an enclosed garden? Are plants, pets, and other natural elements added to the residents’ environment? Are residents taken to special community events and cultural activities?
• Will the resident share a room and/or a bathroom with one or more other residents? How are roommates and rooms selected? If the resident is dissatisfied, can roommates be changed and how is that accomplished? Can the resident bring some of his or her own furniture?
• Individual care plans must be implemented with each resident. How often is the care plan reviewed and changed? What is the protocol for handling problems?
• How are employees selected? How are employees screened for drug use, criminal records, and other potential problems? What is the turnover rate for skilled employees? What is the turnover rate for employees who perform ancillary services, such as meal preparation and financial record keeping?
• If there is a physician that is used by the majority of residents, what are his or her qualifications? How often is the doctor on premises? What is his or her bedside manner with residents?
• Are meals served in a communal dining room or is each resident brought her meal in her room? If communal, how are tables assigned in the dining room? How long does it take for a meal to be delivered to a bedridden resident? How does the food taste and how is it presented to the resident? Is there a means of heating food that has become cold?
• What financial information will the facility require during the admissions process? Can the patient or his representative have copies in advance of all admissions documents and contracts for review? How long does the process take?
• What is included in the cost of care? How are “extra” items billed? Can laundry be taken off-premises and does this save the resident some costs? How are prescription drugs handled? What is the cost difference between a private room and a semi-private room?
• If required non-emergency medical services are not available on premises (such as dialysis), how is transportation arranged? What about transportation to other places, such as local stores and religious services?

To compare nursing homes in your area, visit Medicare’s Nursing Home Compare site.

For more help with the nursing home decision, click here.

When the U.S. Supreme Court opens its fall session on October 3rd, one of the first cases it will hear is Douglas v Independent Living Center, which raises the question as to whether an individual Medicaid beneficiary has the right to sue a state whose Medicaid program does not comply with federal law.

In general, under the U.S. Constitution’s supremacy clause, when both federal and state law apply to a situation, the federal law preempts the state law.  In other words, federal law wins.

In the Douglas case, providers are suing  the state of California, which they claim reduced Medicaid reimbursement rates to such a rate that they cannot provide the services mandated by federal Medicaid law.  At issue before the Supreme Court is not whether this claim is true or false, but whether the providers have the right to bring the claim at all.

In a post on the American Constitution Society blog, Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center, argues that a decision against the providers would also mean that low-income Medicaid beneficiaries also would not have the right to challenge state Medicaid programs for their failure to meet federal guidelines.  She contrasts this with the rights of corporations to challenge state consumer and environmental protections because they conflict with federal law in the same areas.

While I’m not sure that the analogy between the challenges to state Medicaid and state consumer and environmental laws holds up, the effect of an adverse Supreme Court decision would certainly undermine the rights of individuals to challenge state Medicaid programs.  Read Attorney Bobroff’s blog post by clicking here.