All posts by cconboy

Have you or a loved one been denied Medicare-covered services because you’re “not improving”? Many health care providers are still not aware that Medicare is required to cover skilled nursing and home care even if a patient is not showing improvement. If you are denied coverage based on this outdated standard, you have the right to appeal.

For decades Medicare, skilled nursing facilities, and visiting nurse associations applied the so-called “improvement” standard to determine whether residents were entitled to Medicare coverage of the care. The standard, which is not in Medicare law, only permitted coverage if the skilled treatment was deemed to contribute to improving the patient’s condition, which can be difficult to achieve for many ill seniors.

Three years ago in the case of Jimmo v. Sebelius the Centers for Medicare & Medicaid Services (CMS) agreed to a settlement in which it acknowledged that there is no legal basis to the “improvement” standard and that both inpatient skilled nursing care and outpatient home care and therapy may be covered under Medicare as long as the treatment helps the patient maintain his or her current status or simply delays or slows his/her decline. In other words, as long as the patient benefits from the skilled care, which can include nursing care or physical, occupational, or speech therapy, then the patient is entitled to Medicare coverage.

Medicare will cover up to 100 days of care in a skilled nursing facility following an inpatient hospital stay of at least three days and will cover home-based care indefinitely if the patient is homebound.

Unfortunately, despite the Jimmo settlement, the word hasn’t gotten out entirely to the hospitals, visiting nursing associations, skilled nursing facilities, and insurance intermediaries that actually apply the rules. As a result, the Jimmo plaintiffs and CMS have now agreed to a court-ordered corrective action plan, which includes the following statement:

The Centers for Medicare & Medicaid Services (CMS) reminds the Medicare community of the Jimmo Settlement Agreement (January 2014), which clarified that the Medicare program covers skilled nursing care and skilled therapy services under Medicare’s skilled nursing facility, home health, and outpatient therapy benefits when a beneficiary needs skilled care in order to maintain function or to prevent or slow decline or deterioration (provided all other coverage criteria are met). Specifically, the Jimmo Settlement required manual revisions to restate a “maintenance coverage standard” for both skilled nursing and therapy services under these benefits.

Skilled nursing services would be covered where such skilled nursing services are necessary to maintain the patient’s current condition or prevent or slow further deterioration so long as the beneficiary requires skilled care for the services to be safely and effectively provided.

Skilled therapy services are covered when an individualized assessment of the patient’s clinical condition demonstrates that the specialized judgment, knowledge, and skills of a qualified therapist (“skilled care”) are necessary for the performance of a safe and effective maintenance program. Such a maintenance program to maintain the patient’s current condition or to prevent or slow further deterioration is covered so long as the beneficiary requires skilled care for the safe and effective performance of the program.

The Jimmo Settlement may reflect a change in practice for those providers, adjudicators, and contractors who may have erroneously believed that the Medicare program covers nursing and therapy services under these benefits only when a beneficiary is expected to improve. The Settlement is consistent with the Medicare program’s regulations governing maintenance nursing and therapy in skilled nursing facilities, home health services, and outpatient therapy (physical, occupational, and speech) and nursing and therapy in inpatient rehabilitation hospitals for beneficiaries who need the level of care that such hospitals provide.

“The CMS Corrective Statement is intended to make it absolutely clear that Medicare coverage can be available for skilled therapy and nursing that is needed to maintain an individual’s condition or slow deterioration,” says Judith Stein, Executive Director of the Center for Medicare Advocacy and a counsel for the plaintiffs. “We are hopeful this will truly advance access to Medicare and necessary care for people with long-term and debilitating conditions.”

While this doesn’t change the rights Medicare patients have always had, it should make it somewhat easier to enforce them. If you or a loved one gets denied coverage because the patient is not “improving,” then you may have grounds to appeal.

For more information about Medicare, and your rights under specific benefit programs, contact the knowledgeable attorneys at Zacharia Brown. You may schedule an appointment by visiting our website at PittsburghElderLaw.com or by calling 724.942.6200.

Every year at this time, many anxious parents are helping their high school graduates gather items they need to take with them to college. Families print off supply lists, visit big box stores and dutifully prepare their children for a new life away from home.  What they don’t realize, however, is that they may be forgetting the most important detail of all.

If your child has reached this point, you may likely feel as though you are losing control of his or her life. Unfortunately, this is legally true once your child reaches the age of 18 because the state considers that child to be an adult with the legal right to govern his or her own life.

Up until the time your child reaches the age of 18, you are absolutely entitled to access your child’s medical records and to make decisions regarding the course of his or her treatment. Additionally, your child’s financial affairs are your financial affairs. This changes once your child reaches the age of 18 because your now-adult child is legally entitled to his or her privacy.  You no longer have the same level of access to or authority over his or her financial, educational and medical information. As long as all is well, this can be fine. However, it’s important to plan for the unexpected and for your child to set up an estate plan that at least includes the following three crucial components:

1. Durable Health Care Power of Attorney

Under the Health Insurance Portability and Accountability Act, or HIPAA, once your child turns 18, his or her health records are now between that child and his or her health care provider. The HIPAA laws prevent you from even getting medical updates in the event your child is unable to communicate his or her wishes to have you involved. Without a HIPAA release and Durable Medical Power of Attorney, you may have many obstacles to overcome before receiving critically needed information, including whether your adult child has even been admitted to a particular medical facility.

Should your child suffer a medical crisis resulting in his or her inability to communicate for him/herself, doctors and other medical professionals may refuse to speak with you and allow you to make medical decisions for your child. You may be forced to hire an attorney to petition to have you appointed as your child’s legal guardian by a court. At this time of crisis, your primary concern is to ensure your child is taken care of.  You do not need the additional burden of court proceedings and associated legal costs. A Durable Health Care Power of Attorney will remedy this problem and enable your child to designate you or another trusted person to make medical decisions in the event he or she is unable to convey his or her wishes.

2. Durable Financial Power of Attorney

Like medical information, your 18-year-old child’s finances are also private. If your child becomes incapacitated, without a Durable Financial Power of Attorney you cannot access his  or her bank accounts or credit cards to make sure bills are being paid. If you needed to access financial accounts in order to manage or resolve any problem, you may be forced to seek the court’s appointment as conservator of your child.

Absent a crisis, a Durable Financial Power of Attorney can also be helpful in issues that may arise when your child is away at college or traveling. For example, if your child is traveling and an issue comes up where he/she cannot access his or her accounts, a Durable Financial Power of Attorney would give you or another trusted person the authority to manage the issue. An alternative may be to encourage your child to consider a joint account with you. However, this is rarely recommended because of the unintended consequences for taxes, financial aid applications, creditor issues, etc.

3. Will

Your child owns any funds given to him or her as a minor or that he/she may have earned. In the catastrophic event that your child predeceases you, these assets may have to be probated and will pass to your child’s heirs at law, which in most states would be the parents. If you have created an estate plan that reduces your estate for estate tax or asset protection purposes, the receipt of those assets could frustrate your estate planning goals. In addition, your child may wish to leave some tangible property and financial assets to other family members or to charity.

While a will may be far less important then the Durable Health Care Power of Attorney and Durable Financial  Power of Attorney, ensuring that your child has all three components of an estate plan in place can prevent you, as a parent, from having to go to court to obtain legal authority to make time-sensitive medical or financial decisions for your child.

If you have a child (or grandchild) who is approaching adulthood or leaving for college, talk to the experienced attorneys at Zacharia Brown about having the child execute these crucial documents. It is one of the most important preparations you can make as your young adult heads off to school. You may schedule an appointment by visiting our website at PittsburghElderLaw.com or by calling 724.942.6200.

Last week we identified a type of relief that is being offered from Medicare’s Part B late-enrollment penalty for certain Medicare beneficiaries who enrolled in Medicare Part A and had coverage through the individual marketplace. As a follow-up, this week’s topic will include a discussion of how Medicare and Employer coverage are coordinated for an individual.

Medicare benefits start at age 65, but many people continue working past that age, either by choice or need. It is important to understand how Medicare and employer coverage work together.

Depending on your circumstances, Medicare is either the primary or secondary insurer. The primary insurer pays any medical bills first, up to the limits of its coverage. Thereafter, the secondary payer will cover costs that the primary insurer does not (although it may not cover all costs). Knowing whether Medicare is primary or secondary to your current coverage is crucial because it will help determine whether you need to sign up for Medicare Part B when you first become eligible. If Medicare is the primary insurer and you fail to sign up for Part B, your eventual Medicare Part B premium could start going up 10 percent for each 12-month period that you could have had Medicare Part B, but did not take it. (See last week’s blog for information on relief from this penalty).

Here are the rules governing whether Medicare coverage will be primary or secondary insurer:

1. If your employer or your spouse’s employer has 20 or more employees, your employer’s insurance will be the primary insurer and Medicare is the secondary payer. If your employer or your spouse’s employer has fewer than 20 employees, Medicare will be the primary insurer and your employer’s insurance will be the secondary insurer.

2. If you are retired and still covered by your employer’s group health insurance plan, Medicare pays first and your former employer’s plan pays second.

3. If you receive both Social Security Disability Insurance and Medicare, and your employer has 100 or more employees, your employer’s insurance pays first. Some employers are part of a multi-employer plan and if at least one employer in that plan has 20 employees or more, the employer’s insurance pays first. If your employer has fewer than 100 employees, Medicare will pay first.

4. If you have end stage renal disease (ESRD) and are in the first 30 months of Medicare coverage of ESRD, your employer’s plan pays first. After the first 30 months, Medicare then becomes the primary insurer. It does not matter how many employees your employer has.

5. If you are self-employed and have a group health plan that covers yourself and at least one other person, Medicare pays first. **Note that if you are self-employed, you may be able to deduct Medicare premiums from your income taxes by including the premiums in the self-employed health insurance deduction.

Finally, if your employer’s insurance is the primary insurer, the employer must offer you and your spouse the same coverage that it offers to younger employees. It also cannot deny you coverage, cancel your coverage once you become eligible for Medicare, or charge you more for premiums, deductibles, and copays.

For more information on how Medicare and employer insurance work together, please contact the experienced attorneys at Zacharia Brown. You may schedule an appointment by visiting our website at PittsburghElderLaw.com or by calling 724.942.6200.

Medicare is offering relief from penalties for certain Medicare beneficiaries who enrolled in Medicare Part A and had coverage through the individual marketplace. For a short time, these individuals will be able to enroll in Medicare Part B without paying a penalty for late enrollment.

Individuals who do not enroll in Medicare Part B when they first become eligible pay a stiff penalty. For each year that they put off enrolling, their monthly premium increases by 10 percent — permanently. Some people with marketplace plans – that is, plans purchased by individuals or families, not through employers — did not enroll in Medicare Part B when they were first eligible. Purchasing a marketplace plan with financial assistance from the Affordable Care Act (aka Obamacare) can be cheaper than enrolling in Medicare Part B. However, Medicare recipients are not eligible for marketplace financial assistance plans. And because marketplace plans are not considered equivalent coverage to Medicare Part B, signing up late for Part B will result in a late enrollment penalty.

Although the Centers for Medicare and Medicaid Services (CMS) sent notice to individuals who had both marketplace plans and Medicare, it may have been too late. Therefore, CMS is allowing individuals who enrolled in Medicare Part A and had coverage through a marketplace plan to enroll in Medicare Part B without a penalty. It is also allowing individuals who dropped marketplace coverage and are paying a late enrollment penalty for Medicare Part B to reduce their penalty. To be eligible for the relief, the individual must:

1.   Have an initial Medicare enrollment period that began April 1, 2013 or later; or

2.   Have been notified of a retroactive premium-free Medicare Part A award on October 1, 2013 or later.

This offer is available for only a short time. To be eligible for the relief, individuals must request it by September 30, 2017. Individuals who are eligible should contact Social Security at 1-800-772-1213 or visit their local Social Security office and request to take advantage of the “equitable relief.”

For more information on Medicare and Medicaid, please contact the experienced attorneys at Zacharia Brown. You may schedule an appointment by visiting our website at PittsburghElderLaw.com or by calling 724.942.6200.

In continuing with our theme of current events for the month of June, this week we will examine how a possible repeal of the estate tax under the new administration may affect your current estate plan.

With Republicans in control of Congress and the presidency, there is talk of eliminating the federal estate tax, which in 2017 affects estates over $5.49 million. This begs the question: With no estate tax, do you still need to consider utilizing a trust for estate planning purposes? While trusts can be used to shelter assets from the estate tax, trusts have many other valuable estate planning uses.

A trust is a legal arrangement through which one person (or an institution, such as a bank or law firm), called a “trustee,” holds legal title to property for another person, called a “beneficiary.” The following are some of the benefits of trusts.

1. Avoiding Probate: One of the biggest benefits of a trust is avoiding the probate process. Probate is the process of administering and settling an estate after someone dies. In some states, it can be a costly and time-consuming process. Even with small estates, beneficiaries may not have access to estate funds until a will is filed and an executor appointed. A trust gives beneficiaries immediate access to trust funds. If you have property in multiple jurisdictions, a trust can be especially beneficial in avoiding more than one probate proceeding. Also, probate is a public process—anyone can access court records–while assets distributed in a trust are private.

2. Protection for Disability: Another benefit of a trust is to provide protection if you become disabled. If you become incapacitated, the trustee can manage your finances without the need to go to court and get a conservatorship or guardianship.

3. Control: A trust allows you to specifically detail how you want to distribute your assets. For example, you can choose to dole out benefits in small amounts if you don’t want your beneficiaries to receive all your assets at one time. You can also direct how funds in the trust can be spent on a beneficiary. If you have property, the trust can specify who has the right to use the property, whether it can be sold, and how proceeds should be distributed.

4. Protection from Creditors: Certain types of trusts can be set up to protect beneficiaries from creditors. A properly structured trust can ensure that creditors cannot reach trust funds. This can be helpful if, for example, your intended beneficiary divorces or is the target of a lawsuit.

5. Providing for a Child with Special Needs: If you have a child with special needs, a trust is particularly important. A special needs trust allows a beneficiary with special needs to receive inheritances, gifts, lawsuit settlements, or other funds without losing his or her eligibility for government programs.

Trusts are just one possible part of an estate plan. To know if a trust is right for you, especially with the possibility of changes to the current estate tax rates, please contact the experienced attorneys at Zacharia Brown. You may schedule an appointment by visiting our website at PittsburghElderLaw.com or by calling 724.942.6200.

New Obama-era rules designed to give nursing home residents more control of their care are gradually going into effect over the next couple of years. The rules give residents more options regarding meals and visitation as well as make changes to discharge and grievance procedures.

The Centers for Medicare and Medicaid Services (CMS) finalized the rules — the first comprehensive update to nursing home regulations since 1991 — in November 2016. The first group of new rules took effect in November and the rest will be phased in over the next two years.

Here are some examples of the new rules now in effect:

Visitors: The new rules allow residents to have visitors of the resident’s choosing and at the time the resident wants, meaning the facility cannot impose visiting hours. There are also rules about who must have immediate access to a resident, including a resident’s representative.

Meals: Nursing homes must make meals and snacks available when residents want to eat, not just at designated meal times.

Roommates: Residents can choose their roommate as long as both parties agree.

Grievances: Each nursing home must designate a grievance official whose job it is to make sure grievances are properly resolved. In addition, residents must be free from the fear of discrimination for filing a grievance. The nursing home also has to put grievance decisions in writing.

Transfer and Discharge: The new rules require more documentation from a resident’s physician before the nursing home can transfer or discharge a resident based on an inability to meet the resident’s needs. The nursing home also cannot discharge a patient for nonpayment, if Medicaid is considering a payment claim.

The CMS also enacted a rule forbidding nursing homes from entering into binding arbitration agreements with residents or their representatives before a dispute arises. However, a nursing home association sued to block the new rule and a U.S. district court has granted an injunction temporarily preventing CMS from implementing it. The Trump Administration is reportedly planning to lift this ban on nursing home arbitration clauses.

In November 2017, rules regarding facility assessment, psychotropic drugs and medication review, and care plans, among others, will go into effect. The final set of regulations covering infection control and ethics programs are then scheduled to take effect in November 2019.

For more information on Nursing Home facilities and protections for Nursing Home residents, please contact the experienced attorneys at Zacharia Brown. You may schedule an appointment by visiting our website at PittsburghElderLaw.com or by calling 724.942.6200.

After initially delaying a rule intended to prevent financial advisers from steering their clients to bad retirement investments, the Department of Labor (DOL) announced that the rule will go into effect on June 9, 2017, but its future is still unclear.

Earlier this year, President Trump signed an executive order delaying the so-called fiduciary rule, the first part of which was scheduled to go into effect in April 2017, and called for a review. The DOL is presently reviewing the rule and can still make changes to it or repeal it based on the review, but the agency said there was no basis to further delay the rule’s implementation. It is possible that additional changes will be made before the rest of the rule is scheduled to go into effect on January 1, 2018.

Prompted by concern that many financial advisers have a sales incentive to recommend to their clients bad retirement investments with high fees and low returns because they get higher commissions or other incentives, the Department of Labor drew up a rule in April 2016 that compels financial advisers to act like fiduciaries.

The rule requires all financial professionals who offer advice related to retirement savings to provide recommendations that are in a client’s best interest. Currently, financial advisers only have to recommend suitable investments, which means they can push products that may benefit them more than their clients. The new rule will mean that advisers cannot accept compensation or payments that would create a conflict unless they have an enforceable contract agreeing to put the client’s interest first. Advisers also will have to disclose any conflicts and charge reasonable compensation.

The rule’s requirement that advisers work in their client’s best interest will begin on June 9, 2017. However, the requirement that advisers who accept commissions need to include a provision in customer contracts agreeing to put the client’s interests first will not take effect until January 1, 2018. The rule itself is difficult to enforce without the contract requirement, but changes to that part of the rule are possible after the DOL’s review.

The new rule does not solve every problem. It applies only to tax-advantaged retirement accounts like IRAs and 401(k)s and not other investments. And even after the fiduciary rule goes into effect, consumers should still use caution when selecting a financial adviser. One important step is to ask your financial adviser if he or she is serving as your fiduciary. If not, you should be aware that the adviser is not required to act in your best interest.

There are many reputable and experienced financial advisors who will work with you to put together a plan that places your needs and interests first. You need to make sure that you ask your financial adviser about their experience and credentials before you retain their services and also beware of phony credentials.

For more information about financial advisors, please contact the experienced attorneys at Zacharia Brown. You may schedule an appointment by visiting our website at PittsburghElderLaw.com or by calling 724.942.6200.

In honor of Memorial Day, we’d like to introduce you to some of the benefits available to Veterans’ and their spouses when one of them passes away.

Federally, the VA will provide funeral/burial and plot interment benefits to certain veterans, including those dying from a service-related disability, those receiving pension or compensation (including Aid and Attendance), or those passing away in a VA facility.  The amount provided is $749 toward burial and funeral expenses and $749 toward plot expenses.  It can be paid to a veteran’s spouse, child, parent or the executor of his or her estate, so long as proof of payment for the funeral expenses can be furnished.

In addition to the federal benefit, our counties also provide resources to pay towards the final expenses for Veterans and their spouses.  In Allegheny County, there is a $100 burial benefit available on the death of the veteran and also upon the death of the spouse.  They will pay up to $50.00 for the foundation and installation of the free federal headstone or marker if the deceased was a wartime veteran.  This benefit is also available for peacetime veterans if their remains have been uncovered.   In Washington County, the benefit is $75 for the burial expenses and $100 towards the foundation and installation of the marker, and in Westmoreland County, $75 towards the burial expenses and $25 towards the placing of the marker.

The National Cemetery of the Alleghenies is also available to provide no cost burial plots to all members of the armed forces who have met minimum active duty service requirements and were discharged under other than dishonorable conditions.  A veterans’ spouse, widow or widower, minor children and some disabled adult children are also eligible, even if they predecease the veteran.

These are not benefits that can be applied for in advance, and your local funeral director will be able to make the necessary arrangements at the time of death.

We humbly thank the men and women who have served our country on this Memorial Day. For more information about benefits available to our aging Veteran population, please contact the experienced attorneys at Zacharia Brown. You may schedule an appointment by visiting our website at PittsburghElderLaw.com or by calling 724.942.6200.

The Veterans Administration offers two disability programs for eligible veterans. The first benefit is disability compensation which is only available for veterans with service-connected disabilities. The second program provides a disability pension benefit which is available to anyone who served during wartime and has a disability. For this pension benefit, the disability does not have to be related to military service.

Disability Compensation Benefit:
If you have an injury or disease that happened while on active duty or if active duty made an existing injury or disease worse, you may be eligible for disability compensation. The amount of compensation you get depends on how disabled you are and whether you have children or other dependents. Additional funds may be available if you have severe disabilities, such as loss of limbs, or a seriously disabled spouse.

Disability Pension Benefit:
The VA pays a pension to disabled veterans who are not able to work. The pension is also available for surviving spouses and children. This pension is available whether or not your disability is service-connected, but to be eligible you must meet the following requirements:
1. You must not have been discharged under dishonorable conditions;
2. If you enlisted before September 7, 1980, you must have served 90 days or more of active duty with at least one day during a period of war. Anyone who enlisted after September 7, 1980, however, must serve at least 24 months or the full period for which that person was called to serve;
3. You must be permanently and totally disabled, or age 65 or older. You will need a letter from your doctor to prove that you are disabled; and
4. In addition, your income must be below the yearly limit set by law; called the Maximum Annual Pension Rate (MAPR).

The MAPR for 2017 is as follows:

Veteran with no dependents – $12,907
Veteran with a spouse or a child – $16,902
Housebound veteran with no dependents – $15,773
Housebound veteran with one dependent – $19,770
Additional children – $2,205 for each child

The pension you may qualify for depends on your income. The VA pays the difference between your income and the MAPR. The pension is usually paid in 12 equal payments. For example, if John is a single veteran and has a yearly income of $7,387. His pension benefit would be $5,520 (12,907 – 7,387). Therefore, he would get $460 a month. Your income does not include welfare benefits or Supplemental Security Income. It also does not include unreimbursed medical expenses actually paid by the veteran or a member of his or her family.

Aid and Attendance:
A veteran who needs the help of an attendant may qualify for additional help on top of the disability pension benefit. The veteran needs to show that he or she needs the help of an attendant on a regular basis. A veteran who lives in an assisted living facility is presumed to need aid and attendance. A veteran who meets these requirements will get the difference between his or her income and the MAPR below (in 2017 figures):
Veteran who needs aid and attendance with no dependents – $21,531
Veteran who needs aid and attendance with one dependent – $25,525

If you think that you may qualify for Veteran’s Benefits and are considering applying, please contact the experienced attorneys at Zacharia Brown. You may schedule an appointment by visiting our website at PittsburghElderLaw.com or by calling 724.942.6200.

The Veteran’s Administration (VA) offers a pension benefit to low-income veterans (or their spouses) who are in nursing homes or who need help at home with the activities of daily living, like dressing, bathing and other similar tasks.  The pension, called Aid and Attendance, is currently underused, but impending regulations will soon make it available to even fewer veterans.

The new regulations will, for the first time, specify asset limits for qualification and impose a look-back period and transfer penalties similar to Medicaid’s. The looming changes mean that those considering applying for Aid and Attendance should act quickly. Currently, to be eligible for Aid and Attendance a veteran (or the veteran’s surviving spouse) must meet certain income and asset limits. The asset limits aren’t specified, but $80,000 is the amount usually used. However, unlike with the Medicaid program, there are no penalties if an applicant divests him- or herself of assets before applying.

The proposed regulations are set to establish an asset limit mirroring the current amount that a Medicaid applicant’s spouse is allowed to retain ($120,900 in 2017). But in the case of the VA, this number will include both the applicant’s assets and income. It will be indexed to inflation in the same way that Social Security increases. An applicant’s house will not count as an asset, but there is a two-acre limit on the lot size that can be excluded.

The regulations also establish a three-year look-back provision. Applicants who transfer assets within three years of applying for benefits will be subject to a penalty period that can last as long as 10 years. To avoid the penalty, applicants will have to present clear and convincing evidence that the transfer was not made in order to qualify for Aid and Attendance benefits.

Under the proposed rules, the VA will determine a penalty period in months by dividing the amount transferred by the applicable maximum annual pension rate (MAPR). The MAPR for surviving spouses is a little more than half the MAPR for veterans, which means the penalty period for a surviving spouse would be almost twice as long as a veteran’s penalty period would be for the same transferred asset.

These proposed regulations have been looming on the horizon for awhile, with the latest reports indicating that they may go into effect as early as the second quarter of 2017, which runs through the end of June. If you think that you may qualify for Veteran’s Benefits and are considering applying for Aid and Attendance, it would be wise to start the process as soon as possible.

Please contact the experienced attorneys at Zacharia Brown. You may schedule an appointment by visiting our website at PittsburghElderLaw.com or by calling 724.942.6200.