The Legal Checkup Blog

CMS announces 2014 spousal impoverishment standards

Posted by Judith Flynn on Tue, Dec 03, 2013 @ 08:12 AM

The cost of nursing home care, which is approximately $10,000 - $12,000 per month in this area, can quickly wipe out one's life savings.  In 1988, Congress enacted provisions to prevent what is known as "spousal impoverishment," or leaving the spouse who remains in the community with little or no income or resources. The provisions helped to prevent spousal impoverishment and provided some level of security for community spouses. 

Under the MassHealth regulations incorporating the spousal impoverishment provisions, a range of assets is allowed to be retained by the community spouse, and depending on factors such as income and living expenses of the community spouse.  There are additional provisions which provide for some of the institutional spouse's monthly income to be paid to the community spouse each month, or for excess assets beyond the maximum allowed to be retained to generate the needed income, in certain circumstances. 

The Centers for Medicare and Medicaid Services (CMS) have announced these and other spousal impoverishment standards for 2014, which you can see here:

http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Eligibility/Downloads/Spousal-Impoverishment-2014.pdf

 

 

 

Tags: long-term care, asset protection, elder law, Medicare, federal law, nursing home, Medicaid, Estate Planning, long-term care planning

AMTRAK FAILS TO COMPLY WITH ADA STANDARDS FOR OVER 23 YEARS

Posted by Judith Flynn on Wed, Oct 23, 2013 @ 11:10 AM

From the NAELA E-Bulletin:
AMTRAK FAILS TO COMPLY WITH ADA STANDARDS FOR OVER 23 YEARS

The National Disability Rights Network (NDRN) has written a report that demonstrates how Amtrak has failed to comply with the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA). These laws require public and private entities to make transportation services accessible to people with disabilities. The report examines the barriers that people with disabilities face at a variety of Amtrak stations around the country. NDRN has reported the violations to the Department of Justice.

Read the report here:  http://dadsupport.ndrn.org/pub/NDRN_Amtrak_Report.pdf

Tags: elder law, Legal Check Up, disability planning, federal law, rights, discrimination, ADA, Rehabilitation Act

"Jimmo" - An End to the Unlawful "Improvement Standard" In Sight!

Posted by Judith Flynn on Tue, Oct 23, 2012 @ 22:10 PM

I've been following and periodically providing updates on a class action lawsuit known as "Jimmo v. Sebelius" (Kathleen Sebelius, Secretary of Health and Human Services), which was filed in The United States District Court for the District of Vermont.  Plaintiffs include six individual Medicare beneficiaries and seven national organizations (including the National Committee to Preserve Social Security, Parkinson's Action Network, Paralyzed Veterans of America, American Academy of Physical Medicine and Rehabilitation, Alzheimer's Association, and United Cerebral Palsy).

Plaintiffs alleged that the Secretary has adopted an unlawful and clandestine standard to determine whether Medicare beneficiaries are entitled to coverage, resulting in the wrongful termination, reduction, and denial of Medicare coverage for beneficiearies with medical conditions that are not expected to improve. 

Plaintiffs alleged that this unlawful standard is implemented at the lower levels of Medicare's administrative review process, and denies coverage where the beneficiary needs "maintenance services only," has "plateaued," or is "chronic," "medically stable," or not improving.  This "rule of thumb" or clandestine policy is what plaintiffs refer to as the "Improvement Standard."  If you or a loved one has ever been in a rehabilitation facility, you have probably received such a notice.  This Improvement Standard is contrary to the Medicare Act and federal regulations and precludes coverage for beneficiaries with conditions that are not expected to improve or that have not improved over the course of treatment.

Plaintiffs allege that this standard has been implemented without proper rulemaking procedures against beneficiaries that have little or no understanding of its application and no ability or reasonable opportunity to confront it.

Well, we have GREAT NEWS to report!!

The Center for Medicare Advocacy and the Centers for Medicare and Medicaid Services (CMS) have agreed to settle the "Jimmo" case, also known as the “Improvement Standard” case, and have filed a proposed settlement agreement with the Court.  If the judge approves the proposed agreement, a process that could take several months, the Medicare Benefit Policy Manual will be revised to correct any suggestion that continued coverage is dependent on the beneficiary improving.  CMS will undertake an Educational Campaign to inform providers, contractors, and adjudicators that they can not base coverage on the potential for improvement, but on the need for skilled care.

Bravo to the attorneys from the Center for Medicare Advocacy and Vermont Legal Aid, who have undertaken this cause on behalf of the Plaintiffs.  This unlawful "Improvement Standard" is an issue elder law attorneys and their clients face on a daily basis, so this is fantastic news!  If you are interested in viewing the proposed settlement agreement, you may view it here.   

http://www.medicareadvocacy.org/wp-content/uploads/2012/10/Proposed-Settlement-Agreement.101612.pdf

Tags: long-term care, elder law, Legal Check Up, Medicare, termination of benefits, skilled services, federal law, improvement standard, loved ones, rights, Medicaid, long-term care planning

INADEQUATELY FUNDED COURTS HURT EVERY CITIZEN OF THE COMMONWEALTH

Posted by Judith Flynn on Thu, Mar 08, 2012 @ 12:03 PM

The Massachusetts Bar Association invites you to participate in Court Advocacy Day on Monday, March 19 at the Grand Staircase inside the State House. Beginning at 11 a.m., the event will help reiterate the need for adequate funding to sustain the critical needs of the Massachusetts Court System. The event will open with a brief speaking program, after which attendees will be encouraged to meet with their local legislators.

The event will include speaking remarks from:

•Supreme Judicial Court Chief Justice Roderick L. Ireland;

•Chief Justice for Administration and Management Robert A. Mulligan;

•MBA President Richard P. Campbell; and

•Boston Bar Association President Lisa Goodheart

The MBA would appreciate your signing up in advance at http://www.massbar.org/cle/cle-programs?p=2709

 

 

You can sign up in advance to meet with your legislators, or just drop by their offices.  The MBA will provide informational packets at the event that include fact sheets on court funding that you can leave with your legislators.

For your convenience, you can find the list of Senators at:

http://www.malegislature.gov/People/Senate

and the list of Representatives at:

http://www.malegislature.gov/People/House.

Deb Thomson and some members of the MassNAELA Board of Directors will be at the event to offer guidance to MassNAELA members in attendance.  We hope to see many of you there to support funding for the Massachusetts courts!

Follow this link to a video and other resources to learn more about the judicial system's response to the underfunding crisis.   

http://www.massbar.org/about-the-mba/initiatives/court-funding

Tags: elder law, Legal Check Up, Estate Planning, Medicare, federal law, loved ones, priorities, rights, Medicaid

MASS IN LINE FOR 26 PERCENT MEDICAID FUNDING HIKE IN NEW FEDERAL PACT

Posted by Judith Flynn on Wed, Dec 21, 2011 @ 09:12 AM

Hot off the press from the State House News Service:

 

The Patrick administration has struck a $26.75 billion deal with the Obama administration that the governor says will set the stage for a "new round of innovations" in Massachusetts's health care system and that federal officials say will serve as a precursor to sweeping changes in the way health care is delivered in the Bay State.

 

The deal, a three-year Medicaid pact authorized by the U.S. Department of Health and Human Services, represents a $5.69 billion, 26.2 percent increase over the last three-year deal, which was approved by the administration of President George W. Bush in 2008. The last waiver deal, a three-year pact approved in 2008 by the Bush administration, was valued at about $21.2 billion and hailed as a victory for state health programs by Gov. Deval Patrick and U.S. Sen. Edward Kennedy.

 

The new deal was reached last week when Patrick met with U.S. Secretary of Health and Human Services Kathleen Sebelius in Washington D.C., and details were finalized in the days since the meeting, according to an administration official.

 

MassHealth, the state's Medicaid program, provides 1.3 million low-income or disabled Massachusetts residents with subsidized coverage and has been a major part of the state's efforts to provide near-universal coverage.

 

Under the terms of the deal, also known as a Medicaid waiver, safety net hospitals in Massachusetts - including Boston Medical Center and Cambridge Health Alliance - will be required to make major changes to the way they deliver health care in order to access a $120-million-a-year pot of funds. The changes include moving away from a health care system that pays doctors based on the volume of tests they perform, rather than the health outcomes for their patients.

 

Gov. Patrick has pressed lawmakers to act on a bill that would make this shift the norm in the Massachusetts health care industry, but the Legislature has deferred action until next year. 

 

Under the waiver, Massachusetts will establish a pilot program aimed at expanding coverage for pediatric asthma services. This provision of the waiver closely mirrors a Medicaid program adopted in a state budget 18 months ago aimed at preventing unnecessary hospital admissions for pediatric asthma patients. The state will also "streamline eligibility procedures" for about 140,000 parents with children who receive food stamps, and the waiver also covers expanded "early intervention" services for children with developmental delays and disabilities.

 

Massachusetts officials also withdrew a number of requests, according to the federal Centers for Medicare and Medicaid Services, which sent a letter to Patrick administration health and human services chief JudyAnn Bigby. The withdrawn proposals include integrated care for residents eligible for both Medicare and Medicaid, which the Patrick administration plans to tackle independently.

 

The administration had also requested the ability to increase pharmacy co-pays "above allowable State plan levels" and to institute a co-pay for non-emergency medical transportation," according to the letter. The Medicaid waiver, a critical element of Massachusetts health care financing scheme, was due to be finalized in July, but negotiators sought a series of one-month extensions, unable to reach agreement as news of major pressure to cut federal spending dominated the dialogue in Washington.

 

Proponents of the deal said it would preserve the state's health care programs established in 2006, when Gov. Mitt Romney signed a health care law intended to guarantee access to insurance for nearly all Massachusetts residents. Since the law was signed, about 411,000 previously uninsured residents obtained health care coverage, and the Patrick administration estimates that 98 percent of all residents are insured. The cornerstone of that legislation, a health insurance exchange called Commonwealth Care, served as a model for exchanges included as part of the federal Affordable Care Act signed by President Obama nearly two years ago. Commonwealth Care helps enroll low-income residents in heavily subsidized private insurance plans. Commonwealth Care and a separate program that covers care for a diminishing pool of uninsured residents will receive $500 million a year, under the new waiver deal.

 

The Patrick administration has also committed to implementing all provisions of the Affordable Care Act by Jan. 1, 2014, when most major provisions of the federal law take effect. The waiver may carry some political significance heading into a presidential year, as Romney campaigns for the Republican nomination to take on President Obama. Romney has repeatedly been forced to defend the health care law he signed as an affordable plan that works for Massachusetts. But critics say the state's programs survive because of a broad lifeline provided by the federal government, a critique unlikely to be quelled by the major increase in Medicaid funding announced Tuesday.  

Tags: PACE, home care, long-term care, elder law, Legal Check Up, Estate Planning, Medicare, termination of benefits, skilled services, federal law, Community Care, priorities, nursing home, rights, Program of All-Inclusive Care for the Elderly (PAC, Medicaid, Medicaid Home Care, Personal Care Assistance Program

Social Security - Disability Benefits Expedited for 13 Immune System and Neurological Disorders

Posted by Judith Flynn on Tue, Nov 01, 2011 @ 21:11 PM

Social Security is adding 13 new conditions involving the immune system and neurological disorders to the list of Compassionate Allowances.

The Compassionate Allowances program fast-tracks disability decisions to ensure that Americans with the most serious disabilities receive their benefit decisions within days instead of months or years.

"Social Security handles more than three million disability applications each year, and we need to keep innovating and making our work more efficient," Commissioner Michael J. Astrue said.  "With our Compassionate Allowances program, we quickly approved disability benefits for more than 60,000 people with severe disabilities in the past fiscal year."

The new Compassionate Allowances conditions include:

Malignant Multiple Sclerosis
Paraneoplastic Pemphigus
Multicentric Castleman Disease
Pulmonary Kaposi Sarcoma
Primary Central Nervous System Lymphoma
Primary Effusion Lymphoma
Angelman Syndrome
Lewy Body Dementia
Lowe Syndrome
Corticobasal Degeneration
Multiple System Atrophy
Progressive Supranuclear Palsy
The ALS/Parkinsonism Dementia Complex

For more information on the Compassionate Allowances initiative, see the press release at www.socialsecurity.gov/pressoffice/pr/ss-expands-compassionate-allowances.html

 


Tags: long-term care, elder law, disability planning, federal law

Class Action Lawsuit Regarding Medicare "Improvement Standard" Moves Forward

Posted by Judith Flynn on Wed, Oct 26, 2011 @ 13:10 PM

A great decision just came down from The United States District Court for the District of Vermont in the class action lawsuit known as "Jimmo" vs. Kathleen Sebelius, Secretary of Health and Human Services.  The Defendant's Motion to Dismiss the case for Failure to State a Claim was DENIED.

For more details, go to www.thelegalcheckup.com/legislative-alerts/ 

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Tags: long-term care, elder law, Legal Check Up, Medicare, termination of benefits, skilled services, federal law, improvement standard, nursing home, rights

Medicare "Improvement Standard" is a Barrier to Skilled Services

Posted by Judith Flynn on Sun, Sep 25, 2011 @ 21:09 PM

I frequently deal with wrongful termination of Medicare benefits for my clients, assisting them through the appeals process or advocating directly with the facilities for some additional coverage. 

The typical scenario involves an elder who has suffered a crisis in the community, whether a fall, a stroke, or some other acute condition that brings her to the hospital.  After a few nights in the hospital, she is discharged to a rehabilitation facility for skilled therapy.  After a short period of time, perhaps a few days or a week, her spouse is notified that her Medicare coverage will be terminated in a day or two, and that she will be discharged home or they will be responsible to pay privately for her continued stay at the facility at a cost of $350-400 per day!

I assist my clients to immediately request an appeal of the termination of benefits because the basis of the termination of benefits is almost always illegal.  The basis for the termination of coverage is usually described as “medically stable," "custodial level of care,” or "plateaud." These bases for termination of Medicare coverage are in violation of the Medicare Act and federal law.

42 CFR §409.44(c)(2)(iii) provides for maintenance health care and therapy.  It states that “The restoration potential of a patient is not the deciding factor in determining whether skilled services are needed.  Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.”  In addition, the regulations support coverage if the condition will improve OR the skills of a therapist are necessary to perform a safe and effective maintenance program.

Application of an “improvement standard” to justify termination of benefits to a patient is illegal, as the only reference to a requirement for improvement potential in the law pertains to a “malformed body member.”  The imposition of an improvement standard in the typical rehab setting described above results in wrongful termination of skilled services which patients require to maintain their present condition, and often results in further harm and deterioration when the skilled services are terminated prematurely.

If you or your loved one receives a Notice of Medicare Provider Non-Coverage for any of the reasons listed above, call us right away to assist you in appealing the wrongful decision.  781-681-6638.

Tags: elder law, Medicare, termination of benefits, skilled services, federal law, improvement standard, Community Care