ElderLaw Answers Blog

The recently-announced settlement of Smith v. Colmars in Maryland, provides that nursing home residents who are covered by Medicaid may use their income to pay past due medical bills. 

With some allowances for spouses and dependent children living at home, Medicaid-covered nursing home residents must pay most of their monthly income — usually Social Security and pensions — to the nursing home as their contribution to their cost of care.  Advocates have long argued that under federal law, such income could be used to pay for past medical debts, whether owed to the nursing home or to other providers.

The settlement acknowledges this right, while limiting payments to such debts incurred up to three months prior to the application for benefits.

While many states have not acknowledged this right as to monthly income, Maryland appears to have gone further in not permitting Medicaid asset spend downs for past medical debts.  In most states, Medicaid applicants must spend down their resources to $2,000 before the state will pick up the cost of their medical care.  However, they will accept the payment of past medical debt to establish eligibility.

An example should help explain how this works.  Let’s assume that a nursing home resident on August 1st had $7,000 in countable assets but owed $5,001 in various medical bills.  In most states, she would be permitted to pay off the medical bills later in the month and still have Medicaid coverage as of August 1st.  My reading of the commentary on the Maryland case indicates that this was no the case there.  If the nursing home resident paid her medical bills on August 15th, she would become eligible on the date, but would still owe the nursing home for the care provided from August 1 to 14.

Because of this, the settlement of the Maryland case includes payment of $16 million in past due bills to nursing homes.

To read more about the case and the settlement, click here.

Dr. Thomas Perls

I just did the age calculator on Eons.com developed by Dr. Thomas Perls of the New England Centenarian Study at Boston Medical Center.  It says I’ll live to 100, and then gives me a bunch of tips for living to 111, which seems rather unlikely.

But I think it got it wrong on a couple of counts.  First, it asked about the lifespan of my immediate family members and I checked off the box saying that I had at least one family member, my grandmother, who lived past 100.  However, there was no way to indicate that she was an outlier with my other grandparents and my father dying in their 50s, 60s and 70s. 

According to Dr. Perls’ study as reported in The Boston Globe, exceptional longevity has to do with having the right genes, in other words, choosing your parents well.  Exercise, diet and environmental factors can have a significant effect both in how long you will live and how you will enjoy your later years, but they won’t put you in the centenarian clique if you’re not born into.

In my case, I don’t know if I’m a born centenarian because of my mixed heritage in that regard.

In terms of how I could lengthen my life, according to my results, the most important step I could take would be to lower my weight.  The calculator determined that I am overweight, which would surprise anyone who met me.  While it asked my weight, it did not ask for my height, which I would think to be an important related factor.

While the Centenarian study is learning what factors play into living a long, healthy life, my guess is that most people want a combination of long and healthy.  Most of us don’t want to live to 100 if it means many years of ill health or dementia.  But if we can be healthy and aware and enjoy life, we’d love to keep going as long as possible.  We’ll keep looking for the fountain of youth.

We were saddened to read of the death of Dr. Robert N. Butler at age 83 last week.  A fierce advocate for seniors and the founding director of the National Institute on Aging, Dr. Butler coined the term “ageism.” 

In his Pulitzer Prize-winning book, Why Survive? Being Old in America, Dr. Butler argued against putting anyone over age 65 out to pasture.  Practicing what he preached, Dr. Butler was at work until three days before his death.  At his death, Dr. Butler was director of the International Longevity Center – USA.  Unfortunately, his own old age was much too short.

Last year, I interviewed Dr. Butler for ElderLaw Radio and was struck by two points he made.  The first is not news, that we have too few geriatric medicine specialists for today’s seniors, much less for the vast number of baby boomers who will soon be passing the age 65 threshold.  Medical schools need to revamp to meet the needs to the population as it gets older.

Dr. Butler’s second point was more surprising.  I asked him how baby boomers were going to function as seniors, expecting him to say that they would be healthier than their parents and grandparents due to modern medicine and modern lifestyles. 

Instead, Dr. Butler predicted the opposite result.  Due in large part to obesity in America, he predicted a geriatric health crisis in the next couple of decades.  Coupled with low savings rates, he foresaw a gloomy old age for many baby boomers.

Fortunately, he also saw the possibility of change through exercise, better diets, and continued work and other activities.  Each inidvidual American taking control of his or her own future health, he said, could have huge repercussions on the future financial and physical health of the nation as a whole.

Getting this message out would be a fitting legacy for Dr. Butler and his career.

To read more about Dr. Butler, click here.

To read Dr. Butler’s obituary, click here.

According to the National Alliance for Caregiving, almost 50 million Americans care for other adults.  The amount of such care varies greatly, from some shopping and chauffering to doctor appointments, to hands-on care 24/7. 

The question often arises as to whether such care should be compensated or is simply something family members do for one another.  The answer can depend on a number of factors, the amount of care needed, the availability of family members to share in the caregiving, the sacrifices one or more familymembers must make, and the relative financial status of the caregiver and the family member receiving care.

Whatever decision the family comes to, future problems can often be avoided if all family members participate in the discussion and if the final decision is documented in writing in a family care agreement.  Otherwise, misunderstandings are almost certain to develop.

One question that often arises is if a senior pays a child or other family member for services and later moves to a nursing home, runs out of money and applies for Medicaid coverage, how will the Medicaid agency treat the payments.  Will they be treated as a legitimate spend down of the parent’s assets, or as an uncompensated transfer that will cause up to five years of ineligibility for Medicaid coverage?

In Massachusetts, where I practice, the Medicaid agency (called “MassHealth” here) is inconsistent on this issue.  In many instances, it disapproves payments as uncompensated transfers forcing the applicant to prove she needed the services, that they were provided, and the a fair market value was paid.  The agency is opposing a bill in the legislature that would permit and set out guidelines for such payments.

On the other hand, MassHealth has another program that pays family caregivers as stipend under some circumstances so that they can keep frail family members at home and out of a nursing home.  What was it that Mark Twain said about consistency?

A strange anomaly exists in our system of regulating prescription medications.  While pharmaceutical companies must go through a long and careful process to win Food & Drug Administration approval of new drugs for sale, once approved, physicians can prescribe the medication for any medical condition, not just those for which the FDA has granted approval.  This is known as “off-label” drug use.

While this may help some patients for whom the “off label” use of the drug provides a benefit, in all cases the drug is being prescribed without the careful analysis comparing the benefit of the drug for a particular medical condition against its potential side effects that is necessary for FDA approval.  The prescribing physician cannot explain such potential risks to the patient because no one has completed the analysis.  Nor can they say whether this drug is more likely to be effective than another that may be less expensive or have fewer side effects.

Further, while pharmaceutical companies may not market the use of their drugs for “off-label” purposes, under a 1997 change to the law, they can distribute journal articles to physicians about studies of alternate uses of their drugs.  While these articles are an important part of the scientific process, they are often only a piece of the picture, reporting on relatively small and limited studies.

Prof. James T. O’Reilly of the University of Cincinnati College of Law reports on the growing trend of “off label” use of drugs in the NAELA Journal, suggesting that not only can this lead to adverse side effects for patients, but it is adding to the billions of dollars paid to drug companies by individual, insurance companies and federal and state governments through Medicare and Medicaid.

He recommends that whenever a physician prescribes a new drug to a patient, that the patient ask the following questions:

“Does the FDA-approved label for this drug say it is effective for my condition?”

And if the answer is “no.”

“Is there a specific reason for prescribing this product?”

“Is there another FDA-approved label drug for my condition?”

With this vigilance, we can each take a step towards avoiding harmful side effects and saving money for ourselves and our fellow taxpayers.

The MacArthur Foundation’s Research Network on an Aging Society has released a report predicting that by 2050 Americans may well live on average almost eight years longer than is predicted by the Census Bureau or the Social Security Administation.  More likely, life expectancy for males will be three years longer than now predicted, reaching 83 years and for females will be 4.5 years longer than predicted, reaching 89 years, both approximately a decade longer than today’s life expectancy.

If these predictions come true, it will have a significant impact on Social Security and Medicare expenditures, which are already facing bankruptcy (Medicare especially) under lower longevity forecasts.  Yet, the MacArthur Foundation Study, Aging in America in the Twenty-First Century: Demographic Forecasts from the MacArthur Foundation Research Netwok on an Aging Society, is not entirely pessimistic.

On the one hand, the rapid aging of the population and the continued extension of life may lead to catastrophic economic and health conditions in the United States as age entitlement programs such as Medicare and Social Security are severely strained or even collapse under the weight of the baby boom generation (Peterson 1999). The emergence of counterproductive intergenerational tension and discord would likely be another detrimental by-product of this scenario.

…

On the other hand, the extension of life increases one of the most valued of all commodities: human capital (Bloom and Canning 2000). Longer lives will surely create new and expanding markets in health care and leisure (Butler et al. 2004), and they also will produce a more experienced workforce. The baby boom generation will both demand and create an array of novel ways for older persons to remain productive and participate in the creation of a more equitable society.

If their longevity predictions are correct, most of us will live to see which possible future becomes reality.

It is not unusual for family members to become dangers to themselves and others when they begin to lose their prior abilities.  This may be due to their inability to drive safely or their susceptibility to financial scams.

This can put family members in an awkward position.  They want to protect the senior and, in the case of driving, others.  But a confrontation can cause serious problems.

Some possible responses to this type of situation are discussed in an article in The Wall Street Journal, in which I am quoted, and in a new blog I have started writing on the Care.com web site.  Take a look by clicking here and here.

While Medicaid is the primary payment source for nursing home coverage throughout the United States, its coverage of assisted living facility care is much more limited.  It varies from state to state and from facility to facility, making it difficult for seniors and family members to plan.

This is the result of a number of factors, including state Medicaid agencies’ efforts to restrain spending and the desire on the part of the assisted living industry both to charge higher fees to private-pay patients and to avoid the greater regulation that would come with expanded coverage.

Yet, most seniors would prefer to live in assisted living if possible and to the extent Medicaid-covered nursing home residents could be cared for in lower cost assisted living facilities, the states would save money.

The National Senior Citizens Law Center has issued a White Paper on Medicaid Payment for Assisted Living: Current State Practices and Recommendations for Improvements which describes the current situation and proposals for making Medicaid coverage of assisted living available to more seniors.

Read the report by clicking here.

Advanced age, unfortunately, is often accompanied by dementia, whether from Alzheimer’s disease, strokes, small and large, or any of a number of other illnesses. By some measures, half of those over 85 suffer from dementia. The more severe the dementia, the more assistance seniors need getting through the day.

Seniors with dementia can also be at great physical and financial risk due to their own bad decisions and their susceptibility to abuse, again either physical or financial. Depending on the situation, protecting seniors with cognitive impairment, as well as those around them, can be difficult.

What can family members do when a parent should stop driving, but refuses to do so? What if they respond to every telephone solicitation that comes their way? What if they refuse help in the house or resist moving to an assisted living facility?

In many instances, seniors can be cajoled to do what’s best for them. But not always. In such cases, there is the legal remedy of guardianship. Unfortunately, as we shall see, the law can be a blunt instrument.

Every American has the right to determine where she will live, who can come into her home, and how she will spend her money. This personal autonomy can only be taken away by a court determination that an individual is so impaired that she will be injured unless someone is appointed to step into her shoes and make decisions for her.

What is Guardianship?

The person appointed is named either a “guardian” or “conservator” depending on the state’s nomenclature and rights transferred. In many states, a “guardian” is appointed to make personal decisions, such as where the protected person will live and what health care she will receive, while the “conservator” makes financial and legal decisions. The two roles can be filled by separate people or by the same person.

Guardianship proceedings are problematic on a number of levels.

• They take away the protected person’s rights – he can no longer make decisions for himself.
• He is declared to be incompetent, which can be hurtful.
• There is the cost of hiring attorneys and doctors to get through the process.
• The protected person’s situation and finances become part of the public record and the guardian and conservator must make annual reports to the court.
• Finally, depending on the state, many financial and estate planning steps that may be advisable can only be taken with court approval, which causes delay and increases legal fees.

Most states’ laws permit guardianship or conservatorship appointments to be tailored to transfer to the appointed person only those rights needed to make sure the senior is protected. Yet, in most instances no one takes the trouble to do this and the appointment is “plenary”, meaning all rights are taken away from the senior.

Avoiding Guardianship

So, if guardianship and conservatorship are so bad, why does anyone use these procedures? The answer is either because there is no alternative or due to lack of planning.

Often, guardianship and conservatorship can be avoided through estate planning while the senior is healthy and competent. By appointing personal representatives through durable powers of attorney, health care proxies and trusts, an individual can choose who will make decisions for him when he is no longer able to do so. This can avoid family disputes and the cost and delay of guardianship proceedings. It can also give the appointed person more freedom to take the appropriate steps to protect the senior.

Nevertheless, even with proper planning, family members sometimes have to resort to the courts. This is often the case when the senior has become obstreperous and is putting himself or others in danger, or when a third party is unduly influencing the senior. In those instances, going to court may be the only solution.

The Administration on Aging, along with a number of non-profit organizations, has created a new legal resource web site that is available to consumers, attorneys and advocates alike.  It is a good starting point for anyone researching the legal rights and benefits of older Amercians.  You can reach the new site by clicking here.