Gainesville Florida Estate Planning & Elder Law Blog

Every decade, the White House hosts a Conference on Aging in order to advance the quality of life in older Americans. The conference was held in 2015 which is also the year celebrating the 50^th anniversary of Medicaid and Medicare. The conference collects information from different states and cities in order to find out what topics need to be covered in upcoming events.

This year, the main issues that were discussed were retirement security, healthy aging, long-term services and support and elder justice. In the 2015 budget, there was a proposed $3 million that is being used to support aging as well as new technology that will be utilized.

A major project that was implemented was a new one-stop shop for all aging resources. The website for the new services is www.aging.gov,  and the home page contains information on social security, Medicaid and more. The site is easy to navigate according to state and local information.

A personal services agreement permits an elderly person to pay adult children for caregiving while still preserving the eligibility of their long-term Medicaid benefits. The contract itself prevents lawsuits from happening and uncompensated transfers that count against the Medicaid eligibility.

When writing up one of these agreements, it is important to keep the following criteria:

The nature of services must be specific, there must be proof of payments, documentation must be provided, the recipient must pay income tax and the recipient must pay self-employment tax on the income. In order for the agreement to be accepted, it must meet all of these key elements.

Most of the time, paying a relative for care is the safest and most cost-efficient way to handle caregiving. However, it is crucial to know how to structure your agreement so that these arrangements can be made. And it’s always best to have a legal professional who concentrates in these areas to help you set up the agreement.

    When it comes to relevant laws that pertain to nursing home residents, the amount of knowledge the average person knows is very little. Unfortunately, Nursing Home Reform Law violations are all too common. Knowing common problems and solutions could keep both you and your family members safe. Here are numbers 11-20.

   #11. Refusal to Bill Medicare

Fact – Resident can insist on billing Medicare

Solution – One must first obtain Medicare eligibility and then after, the resident or a representative of the resident must make sure the billing process is sent to Medicare

    #12. Losing Therapy for Supposed Failure to Make Progress

Fact – Therapy is always appropriate, even when progress is not being made

Solution – A lack of progress is no reason to stop and should always be provided. It is consistent with the Medicare rules            

   #13. Losing Therapy After Medicare Payment Has Ended

Fact – Therapy should be provided regardless of the resident’s source of payment

Solution – Convincing the doctor to continue therapy should be the first step along with making sure the nursing home is following through with continuing the process

    #14. Forced Transfer within Nursing Home After Medicare Payment Ends

Fact – A Medicare bed can be occupied by a resident whose care is not being reimbursed

Solution – If a resident does not wish to leave the bed, he should assert his right to veto             

   #15. Refusal to Accept Medicaid

Fact –  A nursing home can certify additional beds for Medicaid payment

Solution- This problem ultimately requires early action and should be obtained before admittance to the facility

    #16. Refusal to Readmit From Hospital

Fact – A Medicaid resident has the right to a Medicaid bed regardless of the hospital stay length

Solution – The resident should never hesitate to assert their right to a Medicaid bed once they return from the hospital. If remittance is denied, the resident may file a complaint with the state.

    #17. Excessive Charges

Fact – A nursing home can only give extra charges if they were agreed to during admission

Solution – There are two options. The resident can first refuse to pay the extra charges with a written explanation. They can also make a complaint to the state agencies

    #18. Refusal to Support Resident and Family Councils

Fact – A nursing home must provide meeting space for resident and family councils

Solution – Strength in numbers. Residents should do their best to make sure the council can run a meeting

    #19.  Eviction Threatened for Being Difficult

Fact – Eviction is allowed for only six limited reasons: failure to pay, no longer needing care, when needs cannot be met, endangers others and the home going out of business

Solution – One must know the only reasons eviction is possible and stand firm when another reason is given

    #20. Eviction Threatened For Refusing Medical Treatment

Fact – Refusal of treatment alone is not a reason for eviction

Solution – Complaining to a higher level in this case is the only way

The Notice of Observation Treatment and Implication for Care Eligibility (NOTICE) Act became law when it was signed by President Obama earlier this month. 

The law, which does not go into effect until Aug. 6, 2016, helps prevent patients from having to pay for a nursing home stay because they were classified as outpatients during their stay in a hospital. The law is designed to prevent Medicare beneficiaries from spending days in a hospital under an outpatient status, only to discover at discharge that because they were never admitted, any follow-up stay in a nursing home is not covered under Medicare.

The new law requires that hospitals inform patients under observation or outpatient status for more than 24 hours be informed of that within 36 hours. While that does not totally solve the problem, it does let patients know of the situation so, if they anticipate a nursing home stay, they can talk to the hospital about their status. The text of the law can be seen here.

When it comes to relevant laws that pertain to nursing home residents, the amount of knowledge the average person knows is very little. Unfortunately, Nursing Home Reform Law violations are all too common. The results could be harmful for residents. Knowing common problems and solutions could keep both you and your family members safe. Over the week we will note some of these. We start today with ten and the other ten next Monday.

    #1.  Discrimination against Medicaid-Eligible Residents

Fact – A Medicaid-eligible resident is entitled to the same service as any other resident

Solution – Always resist second-class treatment

    #2. Failing to Take Care Planning Seriously

Fact – Resident’s family has the right to participate in care plan 

Solution – Family should attend all care meetings to keep informed

    #3. Disregarding Resident Preferences

Fact – The facility must make adjustments to honor resident needs

Solution – The resident should voice any and all concerns regarding their needs and make sure they are fulfilled

    #4. Failing to Provide Necessary Services

Fact – The nursing home must provide all necessary care

Solution – Family members should make it clear that a shortage of staff or money is no excuse to provide less service to the resident

    #5. Improper Use of Physical Restraints

Fact – Physical restraints cannot be used as a form of discipline

Solution – The use of restraint can only be approved by the patient’s doctor and the patient. Making sure these rules are followed is vital

    #6. Improper Use of Behavior- Modifying Medication

Fact –  Medication can be used but only when the behavior is a diagnosed issue

Solution – The resident may feel free to say no at any point in treatment and family should monitor what drugs are being administered              

   #7. Excessive Use of Feeding Tubes

Fact – The use of a feeding tube is a last resort

Solution – There should never be hesitation to refuse a feeding tube if the resident is still able to eat with assistance

    #8. Imposing Visiting Hours on Families and Friends

Fact –  A resident’s family member can visit at any time

Solution – If the facility has strict visiting hours, you can tell them that the Reform Law allows family to visit at any time

    #9. Forcing Family and Friends to Take Financial Liability

Fact – A nursing home requires no one to be financially responsible except for the resident

Solution – One may volunteer to be financially responsible but make sure it is never forced and that the resident always makes the final decisions

    #10. Forcing Residents to Give Up Legal Rights and Commit to Arbitration

Fact – There is no good reason for an arbitration agreement to be signed

Solution – During admission, the form should not be signed in case of circumstance changes

Right now, Medicare and Medicaid beneficiaries make up more than 50 percent of the residents in the United States in long-term nursing home and care facilities. The Obama administration has decided to modernize the rules pertaining to the safety of the residents in order to qualify for Medicare and Medicaid payments. The plan is said to change aspects such as staffing, infection control, training, meal times and usage of certain drugs.

Examples of such changes include making rooming arrangements for same-sex couples, siblings, relatives and friends. There will also be also be alternative meal times for residents who eat at different times than normally scheduled.

As far as training goes, nurses will need to be trained in dementia care as well as in the prevention of abuse on the elderly. It is often reported that patients with dementia are often treated with dangerous antipsychotic drugs. The addition of the training will eliminate this danger and promote safety to the residents.

Once the plan is implemented, enforcement ideas will follow to ensure that the safety and needs of nursing home residents is always a priority.

Choosing the right time to sign up for Social Security is an important decision for a good number of our clients. Many people are depending on their Social Security to take them through their senior years.

          When baby boomers wait until age 70 to sign up, their Social Security payments can increase by 32 percent, and people born after 1959 can have a 24 percent increase when they claim payments at age 70, however only 4 percent of women and 2 percent of men claim their benefits at age 70, according to the Center for Retirement Research at Boston College (CRR).

          Although there are enticing incentives to claim Social Security later, most people choose to sign up for payments at age 62, which is the earliest eligible age. The number of people signing up this early has decreased as more people are waiting for the bigger payout. The CRR report indicates that 48 percent of women and 42 percent of men signed up for Social Security at age 62 in 2013, compared to the 60 percent of women and 55 percent of men in 2005.

Here are three instances when filing early for Social Security makes sense:

1. Coordinating your benefits with your spouse

    

             Providing that both spouses are eligible for benefits, one could sign up early and start receiving Social Security payments while the other files later for a higher amount. If one spouse dies, the surviving spouse, in most cases, will continue to receive the larger of the two amounts.

    

2. Terminal illness

             With today’s advanced medicine, many people are living well into their 90s, so it is important to not make any rash decisions unless there is an imminent threat to your health. Many retirees have made such decisions based on the assumption that their life span would be shorter and have returned to the workforce. As a result, they often have to pay penalties if they earn more money than the amount allowed by the Social Security Administration.

    

3. No money and few options to earn money

          Filing for Social Security may no longer be an option if you really need the money.  Unemployed seniors without a steady stream of income may see Social Security as the only way to receive income. In their case, some money may be better than no money at all.

Before you make the difficult decision of collecting Social Security early, always weigh your options and to talk to a financial professional.  

Taking care of yourself while providing support for your spouse that receives long-term care benefit can become a difficult task. The spouses of Medicaid applicants are protected by Medicaid laws to ensure they have the minimum support necessary to live while their husband or wife receives long-term care benefits.

The local Medicaid agency determines the well spouse’s minimum income level or the minimum monthly maintenance needs allowance (MMMNA). It is calculated with a formula based on his or her housing costs.

Effective on July 1, the MMMNA has increased for the well spouse. Previously it ranged form $1,966.25 to a high of $2,980, but now the allowance can only be as low as $1,991.25. If the well spouse’s income is lower than the assigned MMMNA, he or she may be entitled to some or all of the couple’s monthly income.

In extreme cases, the well spouse may request an increase in the amount of MMMNA received either by appealing to the state Medicaid agency or by obtaining a court order of spousal support. 

One of the most common problems with family caregivers is their own age and health.  As people live longer, the problem becomes more and more acute.

The problems that can occur when older caregivers are taking care of loved ones are plentiful. None of these problems are more disconcerting than the health and wellbeing of the caregiver.

The responsibilities involved with caring for an elderly loved one can create a lot of emotional and physical strain. Caregiving requires a lot of intensive work and the person providing it has to make major time commitments, and has to be physically fit enough to assume the role.

A recent New York Times article, More Caregivers Are No Spring Chickens Themselves, offers great insight into this subject.

The U.S. Supreme Court ruled recently that Patient Protection and Affordable Care Act (ACA), is constitutional. The court decision about the law, which was initially passed in March 2010 and fully implemented in January 2014, assures ACA's ability to provide effective and affordable health care to all. This has great significance to you, elder Americans and the disabled.

The court’s decision affirms that health insurance can no longer have annual or lifetime limits. Before ACA, your insurance would cut off completely and suddenly once you reached its limit. Generally that only happened to people who have had serious illness or catastrophic injury. For millions of people, that often meant the real prospect of losing all coverage in the midst of cancer treatments or other expensive and essential care – often leading to unnecessary death or financial ruin. That’s no longer the case.

Prior to ACA, if you had been diagnosed with an illness or any disability, the insurers could deny enrollment to you. Today, you cannot be denied based on disability or prior conditions.

In late June, the federal government released the latest data on the positive impact of ACA on the percentage of Americans having health insurance. The most significant of the data is that 12.6 million Americans went from being uninsured to insured in just 2014, the first year of ACA's full implementation. That’s great news.

A change in Florida law that goes into effect October 1 will have a significant impact on the concept and designation of healthcare surrogates in the state.

Prior to this change, a determination of incapacity has to be made before the healthcare surrogate can act.  Because a person may regain capacity and in some instances, especially with the elderly, may vacillate in and out of capacity, a redetermination of incapacity is frequently necessary to provide ongoing authorization for the healthcare surrogate to act. This process can make it more challenging for a surrogate to provide effective and timely assistance. Further, some competent persons want the help of a healthcare surrogate with the sometimes complex task of understanding healthcare treatments and procedures and with making healthcare decisions.

The changes to the law allow a person to designate a healthcare surrogate, who may act at any time, including while an adult is still competent and able to make his or her own decisions. While competent, the decisions of the principal control over any contrary decision of the surrogate.

Another change to the law creates the ability to designate a healthcare surrogate for the benefit of a minor when the parents, legal custodian, or legal guardian of the minor cannot be timely contacted by a healthcare provider or are unable to provide consent for medical treatment.