The Legal Checkup Blog
Great article in Mass Lawyers Weekly - it shows some of the great advocacy of MassNAELA.
Tags: elder law, Legal Check Up, Legal Documents, Estate Planning, lack of capacity
Great article with important advice in US News and World Report, by Emily Brandon
Medicare beneficiaries will get an opportunity to make changes to their Medicare Part D coverage between Oct. 15 and Dec. 7, 2014. Many retirees will experience premium increases, changes in covered drugs and new cost-sharing requirements if they don’t switch plans. Here’s what you should review during the annual open enrollment period so you can select a new prescription drug plan if necessary.
Covered medications. Prescription drug plans are permitted to tweak the roster of medications they cover each year, and it’s important to double-check that your current medications and any new prescription drugs you expect to use in the coming year will be covered. "The first thing people should look at is whether all of their prescriptions are on the formulary,” says Casey Schwarz, policy and client services counsel at the Medicare Rights Center, an advocacy organization. “A plan can have very low premiums, but if the drug you would like to take is not on the formulary and not covered, then it is not such a good deal.”
Premium prices. The average Medicare Part D monthly premium will increase by 4 percent to $38.83 in 2014, assuming beneficiaries remain in their current plan, according to an analysis of 2015 Part D plans by researchers at Georgetown University, the University of Chicago and the Kaiser Family Foundation. However, beneficiaries in six of the most popular Part D plans will see their premiums increase by at least 10 percent, and one Part D plan increased premiums by 52 percent. About 1.5 million beneficiaries (8 percent) will experience a premium increase of $10 per month or more, while 985,000 beneficiaries (5 percent) will experience a premium decline of at least $10. “You have to weigh the amount of the change in premiums versus the inconvenience of making a shift,” says Jack Hoadley, a health policy analyst at Georgetown University and co-author of the report. “We know that some people are looking at premium increases that can be as much as $20 a month or more. In those kinds of situations, the payoff for making a switch can be substantial. If the change in your premiums is only a dollar or two, it may not be worth making a change.”
Cost-sharing changes. Prescription drug plans change the copayments and coinsurance associated with covered drugs each year. For the first time in 2015, all Part D plans will use tiered cost-sharing. Most plans have five tiers, including two for generic drugs, two for brand-name drugs and one for high-cost specialty drugs. Medications in each tier have different out-of-pocket costs, ranging from copayments to passing along a percentage of the bill to beneficiaries. “There are likely to be changes in the cost-sharing amounts that plans charge for drugs, drugs taken off the formulary and new utilization management tools like prior authorization,” says Juliette Cubanski, a policy analyst at the Kaiser Family Foundation. “Even if people are happy with the coverage that they have now, it does make sense to take a little bit of time to look at your coverage and see how it might be changing and see how your needs have changed.”
Deductibles. Most part D plans (58 percent) charge a deductible, which is typically a standard amount of $320 (44 percent). However, 14 percent of plans will charge a smaller deductible next year, up from 4 percent in 2014. “Plans that do lower or eliminate the deductible typically make other changes that might actually translate into higher costs for people,” Cubanski says. “While it might look appealing not to have that deductible, if the premium is so much more expensive that you end up paying more on an annual basis, that might not be a very good value payoff for people to be making.”
Preferred pharmacies. The majority of prescription drug plans (87 percent) now offer beneficiaries lower cost-sharing requirements if they fill their prescriptions at selected network pharmacies, up from 72 percent in 2014 and just 7 percent in 2011. For example, the AARP MedicareRx Saver Plus prescription drug plan charges a $20 copayment for a preferred brand drug at a preferred pharmacy, but the cost jumps to $45 at another in-network pharmacy that is not preferred. And beneficiaries enrolled in the Humana Walmart Rx prescription drug plan pay $1 for preferred generic drugs and $4 for non-preferred generics at a preferred pharmacy, versus $10 and $33, respectively, at other in-network pharmacies. “It’s important to understand if the pharmacy where you go to fill your prescriptions is part of the network of plans with the preferred cost-sharing,” Cubanski says.
Medication restrictions. Some Part D plans require beneficiaries to get prior authorization before they will cover certain drugs, require patients to try a lower-cost drug before paying for an expensive medication or limit the amount of medication you can buy at one time. “It may be worth paying a little bit more to get the one that doesn’t include the restrictions,” Hoadley says.
Consider other options. There will be just over 1,000 prescription drug plans offered nationwide in 2015, and Medicare beneficiaries will have a choice between an average of 30 plans. You can view the coverage options in your area using the Medicare Plan Finder at medicare.gov/find-a-plan. “Each year, plans make adjustments to their premiums, their formularies and whether they have prior authorization or other restrictions on use, and what worked for a person who was taking a particular array of drugs last year may not work for them this year,” Hoadley says. “It’s worth seeing if there is money to be saved or better coverage to be acquired.”
Tags: elder law, Legal Check Up, Medicare, nursing home
I had to go to the Registry of Motor Vehicles the other day, and knew it was not a good sign when I had to wait in line just to get in the door. After approximately 15 minutes in line just to receive my bakery-like number, I wandered around looking for a place to stand.
The benches were fully occupied, mostly by 20 and 30 somethings, talking loudly on their iphones and not concerned that the masses were not interested in their activities of the prior evening, or how the boyfriend or girlfriend about whom they were speaking had disrespected them. Belts are apparently a luxury rather than a necessity these days, as I observed more undergarments than I would have preferred.
After an hour or so I was able to grab a spot on a bench when the prior occupant's number was called. As I looked around, however, several elderly people had joined the crowd, two with canes. I watched for a few minutes to see if any of these fine young folks would offer a seat and, much to my disappointment, they did not. An elderly couple was on the opposite side of the room, so I waved them over and gave the woman my seat. Her husband was so appreciative, gushing at the gesture I had made to offfer this 80-85 year old woman with a cane my seat.
I find this entire experience to be very disturbing - both the fact that I was the only one to offer a seat to someone like this, and the fact that these elders were so genuinely surprised by the gesture. The act of a younger person offering their seat to an older or frailer person should not be surprising - it should be expected.
There is no doubt in my mind that any of my three children would offer their seat to an elderly or disabled person, or any person in need, and there are many other fine young people who would do the same. But, I find the fact that basic manners and respect for our elders is becoming the exception rather than the rule to be very sad.
Tags: elder law, Legal Check Up, priorities, respect for elders, manners
Each year, MassNAELA holds a "scattered site" breakfast that is open to non-attorneys and non-members. It is held on the same morning in four parts of the state, and provides a wonderful opportunity for MassNAELA attorneys and other professionals who work with seniors to network.
This year the breakfast program will be hosted at the following locations:
Armbrook Village in Westfield, The Village at Duxbury in Duxbury, Whitney Place in Natick, and Woodbridge Assisted Living Facility in Peabody. The substantive program will be "The Affordable Care Act, Medicare, and Medicaid - Everything You Need to Know," with a panel of experts at each location.
A special rate of $30 is available to guests of a MassNAELA member if paid by February 28th. If you would like to attend as my guest at the Duxbury location, please download the form below, complete it, and send it with your payment as indicated on the form before the deadline.
http://www.thelegalcheckup.com/Portals/106531/docs/140306 MassNAELA breakfast registration.pdf
Please send me an email (to firstname.lastname@example.org) to let me know that you will be attending as my guest. I hope to see you there for this important topic and great networking!
-- Judy Flynn
Tags: home care, long-term care, elder law, Legal Check Up, Estate Planning, Medicare, Community Care, Medicaid, long-term care planning
Today I begin my term as President of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA). I look forward to a productive year of advocacy ahead and hope you will help with one of our current goals, which is to educate the public about unethical ads that prey on the vulnerabilities of seniors and people with special needs. You've heard the ads on the radio, seen the flyers or newspaper ads.
The attorneys/companies who place these ads make false promises, create false impressions, and use scare tactics to instill fear in their intended audience.
* These ads make the nursing homes sound like money-grubbing thieves -- when the reality is that the caring staff of nursing homes provide 24/7 care to people who are unable to remain safely in the community. Should the nursing homes provide this care for free? You can bet that the attorneys who place such ads do not provide their services for free. In fact, if you consider the cost of some of these ads (many thousands of dollars), it suggests that these scare tactics are having the desired effect.
* These ads give the false impression that seniors can remain in full control of their assets AND protect those same assets from the cost of long-term care (not true!).
* The ads of a few elder law attorneys place all elder law attorneys in a bad light by emphasizing "protecting assets" above all else, when the reality is that protection of the client is the paramount concern for most elder law attorneys.
MassNAELA works hard to advocate for seniors and people with special needs, but this task is made much more difficult by offensive ads that encourage people to do whatever is necessary to make sure they won't "lose their assets to the nursing home" - in other words, let the state pay it all.
This emphasis hurts everybody because care providers, judges, and legislators have begun to see elder law attorneys as the enemy -- doing nothing more than "hiding" assets from the nursing homes. This could NOT be further from the truth, however. Most elder law attorneys focus on protecting the client, not the assets. Most elder law attorneys provide comprehensive guidance and advocacy to clients, and if asset protection is part of a comprehensive plan, it is only done with full understanding that any assets that are "protected" from the cost of nursing home care are NOT fully available to the client for their future needs. Any ads that suggest one can protect assets and retain full control of the assets are misleading at best.
We need your help to spread the word regarding ads that use false claims and scare tactics. Share this message with your loved ones. If you work with seniors and their families, you have the opportunity to share MassNAELA's message with them.
If you or someone you know has a concern about a particular ad, feel free to send it to me at email@example.com.
Planning is important, whether it is advance planning or crisis planning, it is important to seek professional guidance. Just be aware that if something seems too good to be true, it probably is. If something makes you feel rushed, anxious, or bullied, you should walk away. Get a second opinion. Feel free to call my office for guidance, or you can find a MassNAELA member in your area at www.massnaela.org.
Happy New Year to you all! Make 2014 the year you get your affairs in order.
Tags: long-term care, asset protection, Legal Check Up, Estate Planning, disability planning, Medicare, Community Care, Medicaid, rights, nursing home, long-term care planning
I have seen it reported that consumers spent $59.1 BILLION last year on Black Friday. $59.1 BILLION!
This number is staggering to me, and even more so when I consider the significant portion of these sales that likely represents well-intentioned, but useless, gifts. So many items will be returned because they are the wrong size, the wrong style, or just not something the recipient wants or needs.
Even worse, how many of you have received something that you would never wear or use, but you did not return it because you did not want to hurt the giver's feelings? Perhaps you re-gifted the item the next year, but let's face it - there is a great deal of waste around the holidays, and the true meaning behind the gifting has been stampeded in a rush to get the best prices.
What concerns me even more is that many people take out loans or make these purchases on credit cards, digging themselves deeper into debt in the process. This is not what the holidays are supposed to be about. Thanksgiving is a perfect time to reflect as a family, and to take steps to put the meaning back in the holidays.
You may want to consider setting a dollar limit, or having a grab to reduce the number of gifts each person needs to buy. You might consider implementing a new charitable tradition that the entire family can feel good about, such as making or purchasing items for nursing home residents who may not have family of their own, or for homeless families. You could conduct a food drive to replenish the food pantries that are always in need, or send items to our troops who are in harm's way to protect our country. The possibilities are endless, and these gifts are always the perfect fit.
Let me offer another suggestion. Before you and your family spend hundreds of dollars on things you probably don't need, consider putting the money towards something you should all have in place. If every member of your family age 18 and older does not have a basic estate plan in place, consider spending on that instead. At the very least, you should each have a Durable Power of Attorney and a Health Care Proxy with a HIPAA Release, appointing one or more agents to make health and financial decisions for you if you become unable to do so.
You can get additional information on my website about estate planning, long-term care planning, and other services.
Whether you will be part of the Black Friday stampede or collecting items for others, I wish you all a wonderful Thanksgiving!
Tags: long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Estate Planning, disability planning, Community Care, family, loved ones, Durable Power of Attorney, Living Wills, Health Care Proxy, Last Will & Testament, long-term care planning
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
SEMINARS AND WORKSHOPS
Next LEGAL CHECK UP Boot Camp to be held
Wednesday, November 6, 2013
10 am - 12 pm
SPACE IS LIMITED - PRE-REGISTRATION IS REQUIRED
Attendees of this free comprehensive workshop will learn the important considerations for a successful Estate and Long-Term Care Plan. Part of the workshop will be interactive to allow attendees to discuss general problems, concerns and situations.
This workshop will cover:
*what estate planning documents you need in order to achieve your goals and objectives;
* how to properly select Agents, Personal Representatives, and Trustees;
* whether you need a Will, a Trust, or both;
* long-term care costs and payment options (Medicare, VA benefits, Long-Term Care Insurance, Private Pay and Medicaid)
* how to protect your home and other assets;
Each attendee will receive a workbook and will "graduate" from the Boot Camp with a detailed, comprehensive plan of action.
For more details and to sign up go to:
Tags: PACE, home care, long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Estate Planning, disability planning, Medicare, Community Care, Medicaid, Medicaid Home Care, Durable Power of Attorney, Health Care Proxy, Last Will & Testament, nursing home, Program of All-Inclusive Care for the Elderly (PAC, Veterans Benefits, long-term care planning
"Of course he was admitted -- he has been in the hospital for four nights..." (Beware "Observation Status")
Once again I have encountered the infuriating problem of "Observation Status." A client's loved one was admitted to a Boston hospital as a result of a crisis. I instructed my client to confirm that his father had been formally "admitted" to the hospital, and his response was a bit incredulous. "Of course he was admitted -- he has been in the hospital for four nights!" His response was completely logical, of course, but my concern was realized when my client confirmed that the hospital still had his father listed on "Observation Status."
In general, Medicare will only provide coverage for skilled rehabilitation services at a nursing home if the patient had a minimum of a three-night stay and is transferred directly from the hospital to the nursing home. My client's father could not safely return home, and would need to be placed in a skilled nursing facility, so we advocated for his status to be changed (for him to be "admitted") and ensured that he had the required three-night stay before being transferred to the nursing home. (Just to be clear - staying at the hospital on "Observation Status" for three nights does NOT qualify as a three-night stay. One must be "admitted" before midnight for that night to qualify.)
Unfortunately, most people are not working with an attorney and do not find out about this problem until much later when they are charged for various prescriptions and services they received in the hospital or, worse, when they receive a huge bill from the nursing home. It is far more difficult to successfully appeal the "Observation Status" at that point, but an appeal should be pursued.
On November 3, 2011, the Center for Medicare Advocacy and the National Senior Citizens Law Center, filed a nationwide class action lawsuit to challenge this illegal practice on the basis that it violates the Medicare Act, the Freedom of Information Act, the Administrative Procedure Act, and the Due Process Clause of the Fifth Amendment to the United States Constitution. (Bagnall v. Sebelius, No. 3:11-cv-1703, D. Conn)
In the meantime, you need to know your rights and advocate for yourself. There are a number of self-help packets (and a wealth of information on this and other topics) on the Medicare Advocacy website at http://www.medicareadvocacy.org. Call me at 781-681-6638 if you need advocacy to protect your rights on this or a related issue, or you can find an elder law attorney in your area through the website of the Massachusetts Chapter of the National Academy of Elder Law Attorneys at www.massnaela.org.
Education is the best defense! Please share this information with your friends and family to prevent them from being the next unsuspecting victim of this illegal practice.
Tags: long-term care, elder law, Legal Check Up, Medicare, Medicaid, skilled services, improvement standard, rights, nursing home, long-term care planning, admission agreement
Rockland- Aging is BIG business. The key word here is "business."
With the demographics as they are, people living longer, boomers coming of age, new products and services are introduced each day for seniors and their caregivers. Many of these products and services are fantastic and live up to their promises. Others, however, rely on fancy web sites and literature, celebrity endorsements and microscopic disclaimers to make a sale. These tactics are successful because they play on the vulnerabilities of the target audience, often when they are most overwhelmed and desperate for help.
Perhaps you are caring for your spouse who is suffering from Alzheimer’s or some other chronic condition. Maybe you are looking for guidance because your parents are no longer safe in their home. Whatever your situation, you need to be an informed consumer. You’ve got to ask some important questions in order to properly assess whether a product or service is right for you or your loved one.
In this first of a three-part series, we’ll discuss some of the hidden issues and questions that seniors and their caregivers need to consider asking in order to make educated, informed decisions.
Let's start by dispelling the myth that anything in business is "free." Let’s face it - if something was truly free, the provider would be a charity rather than a business. Once you accept that businesses exist to make money, you will want to understand how companies are being paid in order to determine whether the product or service will benefit you. You need to ask questions and demand answers. Below are a few common examples.
Senior Living Referral Services. Each morning while I am having my coffee and watching the news, I see the commercial with Joan Lunden promoting a “free senior living referral source.” And, each morning, I want to yell at my TV, frustrated that the consumer is not being provided with the full story. Sure, there is likely a disclaimer in print so small that it is illegible, but let’s face it - nobody is reading the fine print, even if it is large enough to see. Viewers trust Joan Lunden because they watched her for years on morning TV. They trust her because she tells about her own struggle to find the right resources for her aging mother, and that is very compelling. I went to the web site for this company to research a bit further and found the following disclaimer – again, in print so tiny and a font so light I had trouble reading it: “Our service is offered at no charge to families as the communities and providers in our network pay (our) fee …” We do not own, operate, recommend, or endorse any of these communities or providers.”
So, if a senior living referral source such as this does not recommend or endorse any of the communities they refer you to, you need to ask some questions in order to determine if this service will benefit you. Consider asking them the following questions:
1) If you do not recommend or endorse any of the facilities you will refer me to, what are the criteria that you use? Is it solely that they pay a fee for the referral?
2) How much will you be paid by a facility if my loved one is placed there?
3) Are there other facilities in the area that you have not referred us to and, if so, why not? Is it solely that they have not agreed to pay a fee for the referral?
4) Will you put the criteria you are basing the referral on in writing?
Web-based senior planning resources. These sites are multiplying like rabbits on the web, each promising to be the hub of information and a central place to locate quality geriatric care managers, elder law attorneys, assisted living facilities, nursing homes and more. Some of these sites do provide valuable information to seniors and caregivers but, again, you must understand how they are getting paid. Ask the following questions:
1) Do the “experts” on your site pay to be designated as experts?
2) If not, what is the criteria one must meet to qualify as an “expert?”
3) Do providers (geriatric care managers, elder law attorneys, facilities, etc) pay to be listed on your site, or to be highlighted or listed first in search results?
4) How do you ensure that the information listed on your site is current and accurate?
5) Can you guarantee the security of any personal information I provide through the site? How?
6) Do you share my information with any other person or entity?
7) Do I have to register or sign up in order to use the site?
One site that I recently tested asked for far too much personal information. In order to request information from a specific elder law attorney, for example, site users are asked to provide the name of the person they are concerned about and the details of their condition. It is unclear who receives the inquiries submitted online or whether this personal information is protected. This particular site also offers a forum for family members to share information and communicate about their loved one – to list doctor appointments and medications, post estate planning documents, etc. This sounds great in theory, but there is no guarantee that the communications are private or secure. There are a number of other forums where family members can communicate without going through a web-based senior planning site such as this, and I caution you not to provide any personal information on such a site unless your questions are answered to your satisfaction, preferably in writing.
Personally, I believe the best way to contact a professional is directly, with no third-party intermediary. The best resource to find an elder law attorney is through the Massachusetts Chapter of the National Academy of Elder Law Attorneys, at www.massnaela.com (or www.naela.org in other states). A qualified geriatric care manager can be found through the National Association of Professional Geriatric Care Managers at www.caremangers.org. You can research assisted living facilities through www.massalfa.org (Mass Assisted Living Facilities Association), and nursing homes through www.medicare.gov/nursinghomecompare. Nursing Home Compare provides you with the most recent inspection results for all nursing homes in the state, including any deficiencies you should be aware of.
There is nothing wrong with companies trying to make a profit by providing products and services that address the needs of seniors and their caregivers. But, it is up to you to look beyond the celebrity endorsements and glitzy marketing. It is up to you to determine if “experts” earn their designation through knowledge and experience, or by paying a fee to be listed as such; whether a referral service will refer you only to facilities that pay a fee to be included. If the fancy marketing and celebrity endorsements give you one impression, but the fine print says something completely different, you need to ask questions and demand answers before proceeding. Remember, businesses are in business for one reason - to make money. You must understand how they are being paid in order to truly understand if the product or service offers value to you.
Note: In our next post, we will discuss financial services sales and MassHealth application prep services.
Tags: PACE, home care, long-term care, asset protection, Legal Check Up, Estate Planning, Community Care, Elder Financial Abuse, loved ones, skilled services, nursing home, Program of All-Inclusive Care for the Elderly (PAC, Veterans Benefits, long-term care planning