If a resident must leave a Nursing Facility to be hospitalized for a specific medical condition, most states will authorize nursing facilities to hold a bed (hereinafter referred to as a bed hold) for a certain period of time. The bed hold can either be privately paid at the Nursing Home's private pay rate, or if the home resident returns to the facility within 15 days or less.
Federal law requires that all nursing facilities notify residents and/or potential residents of their bed hold rights during the admission process. This notification must not only include the facility's bed hold policy but also include Medicaid's payment for bed holds under the applicable state program. Furthermore, when the nursing home resident leaves the faciity due to a period of hospitalization, the facility must again give notification of bed hold policies for both private pay and Medicaid programs. When the resident is to be discharged from a hospital, most residents look to the initial nursing facility they were previously placed for readmittance. Federal law dictates that residents have a right to be readmitted from the hospital to the original nursing facility's next available bed. This is regardless of the length of stay of hospitalization.
Sometimes, on occasion, however, nursing facilities have refused to readmit residents often claiming that the resident is either too difficult or the facility cannot meet the increased needs of the resident. Mostly, these claims are misguided but often succeed because discharge planning from a hospital has to be done on a timely basis. Residents must often find another facility to grant admission before a resolution can be achieved with the initial nursing facility.
If the nursing facility refuses admission, the resident should contact an Elder Law attorney who can either make a complaint with the applicable state agency or file a claim with the local court in order to seek an injunction against the nursing facility. Considering time is often the biggest issue in discharge planning, many residents and their families are forced to accept a "bed" at a new facility rather than wait for readmittance to the original one.
Sunday, February 27, 2005
Wednesday, February 16, 2005
Medicare Drug Improvement Act - What's Improving?
Late in 2004, the largest increase in Medicare insurance premiums in 15 years was announced. Most enrollees will pay a Part B premium of $78.20 per month beginning in January 2005, up from $66.60 in 2004. This represents a 17.5% increase in premiums. In addition, the the Part A deductible will increase from $876.00 to $912.00 as will several Medicare co-insurance payments.
Hidden in the Bush administration supported 700+ page Medicare Prescription Drug Improvement and Modernization Act of 2003 were provisions mandating these increased out-of-pocket payments for elderly beneficiaries and those with disabilities. The Act also increased payments to physicians, HMO's (and other managed cost plans now called "Medicare Advantage Plans"), hospitals, pharmaceutical companies and drug distribution companies.
Although the Act provides some coverage for prescription drugs, it prohibits the governement from using its buying power to negotiate drug prices with the manufacturers or from importing less expensive drugs from Canada or Mexico. Robert M. Hayes, president of the Medicare Rights Center, said the increase in out-of-pocket costs will be especially painful to thoe on fixed incomes because Social Security payments are expected to rise only 3%.
"Older Americans already are staggering from the relentless increases in the cost of presciption drugs," he said. "More older Americans will face harsh choices in meeting basic human needs - health, food and housing."
When the Medicare Act's prescription drug plan in implemented in 2006, enrollees in the drug coverage plan will be paying an additional $35 per month in premiums. By then, the typical retiree will be paying more than $115 per month in Medicare premiums in addition to the cost of any Medigap/private supplemental insurance premiums.
There is some good news: low income enrollees who are not on AHCCS, TRICARE for Life, private group or employer group plan with prescription drug coverage or an FEHBP (Federal Employees Health Benefit Plan), may be able to apply for a $600 credit on their Medicare Rx card for 2004 if they applied before 12/31/04 and another $600 credit for 2005.
Source: Never Too Late, November 2004.
Hidden in the Bush administration supported 700+ page Medicare Prescription Drug Improvement and Modernization Act of 2003 were provisions mandating these increased out-of-pocket payments for elderly beneficiaries and those with disabilities. The Act also increased payments to physicians, HMO's (and other managed cost plans now called "Medicare Advantage Plans"), hospitals, pharmaceutical companies and drug distribution companies.
Although the Act provides some coverage for prescription drugs, it prohibits the governement from using its buying power to negotiate drug prices with the manufacturers or from importing less expensive drugs from Canada or Mexico. Robert M. Hayes, president of the Medicare Rights Center, said the increase in out-of-pocket costs will be especially painful to thoe on fixed incomes because Social Security payments are expected to rise only 3%.
"Older Americans already are staggering from the relentless increases in the cost of presciption drugs," he said. "More older Americans will face harsh choices in meeting basic human needs - health, food and housing."
When the Medicare Act's prescription drug plan in implemented in 2006, enrollees in the drug coverage plan will be paying an additional $35 per month in premiums. By then, the typical retiree will be paying more than $115 per month in Medicare premiums in addition to the cost of any Medigap/private supplemental insurance premiums.
There is some good news: low income enrollees who are not on AHCCS, TRICARE for Life, private group or employer group plan with prescription drug coverage or an FEHBP (Federal Employees Health Benefit Plan), may be able to apply for a $600 credit on their Medicare Rx card for 2004 if they applied before 12/31/04 and another $600 credit for 2005.
Source: Never Too Late, November 2004.
Thursday, February 10, 2005
The Top 10 Health Care Mistakes Made by the Elderly
Americans are living longer than ever before, but many older Americans could better deal with their health problems, according to the Institute for Healthcare Advancement (IHA). To help the elderly stay healthier longer, the IHA has identified the 10 most common mistakes older Americans make in caring for their health.
The Institute is a non-profit organization based in La Habra, California, that demonstrates innovative health care practices and educates health care professionals and consumers.
1. Driving when it's no longer safeThe elderly often associate mobility with their independence, but knowing when it is time to stop driving is important for the safety of everyone on the road. Decisions about when to stop driving should be made together with a family physician because chronological age alone does not determine someone's fitness to drive.
2. Fighting the aging process and its appearance
Refusing to wear a hearing aid, eyeglasses or dentures, and reluctance to ask for help or to use walking aids are all examples of this type of denial. This behavior may prevent the senior from obtaining helpful assistance with some of the problems of aging.
3. Reluctance to discuss intimate health problems with the doctor or health care provider Older Americans may not want to bring up sexual or urinary difficulties. Sometimes problems that the individual thinks are trivial, such as stomach upsets, constipation, or jaw pain, may require further evaluation.
4. Not understanding what the doctor told them about their health problem or medical treatment plan "I could not understand the doctor," or "He told me what to do, but you know me, I can't remember what he said" are typical complaints. Reluctance to ask the doctor to repeat information or to admit that they do not understand what is being said can result in serious health consequences.
5. Disregarding the serious potential for a fall Falls result in fractures and painful injuries, which sometimes take months to heal. To help guard against falling, the elderly should remove scatter rugs from the home and have adequate lighting in the home and work areas. They should wear sturdy and well-fitting shoes, and watch for slopes and cracks in sidewalks. Participating in exercise programs to improve muscle tone and strength is also helpful.
6. Failure to have a system or a plan for managing medicines
Missed medication doses can result in inadequate treatment of a medical condition. By using daily schedules, pill box reminders or check-off records, seniors can avoid missing medication doses. Because health care providers need to know all of the medicines that an elderly patient is taking, patients should maintain a complete list of all their prescription and over-the-counter medicines, including dosage and the reason that the medicine is being taken.
7. Not having a single primary care physician who looks at the overall medical plan of treatment Health problems may be overlooked when a senior goes to several different doctors or treatment programs, and multiple treatment regimens may cause adverse responses. The patient may be over or under-treated if a single physician is not evaluating the full medical treatment program.
8. Not seeking medical attention when early possible warning signs occur Reasons for such inaction and denial may include lack of money or reduced self worth due to age. "I am so old it doesn't matter anymore." Of course, such treatment delays can result in a more advanced stage of illness and a poorer prognosis.
9. Failure to participate in prevention programs Flu and pneumonia shots, routine breast and prostate exams are examples of readily available preventive health measures that seniors should utilize to remain healthy.
10. Not asking loved ones for help Many older Americans are simply too stubborn to ask for help, whether due to an understandable need for independence or because of early signs of dementia. It's important that elderly people alert family members or other loved ones to any signs of ill health or unusual feelings so that they can be assessed before the problem advances.
In an effort to help older American become less fearful of medical conditions and more empowered about their health, the IHA has published What to Do For Senior Health, an easy-to-understand, self-help medical book for senior citizens. For more information or to order the book, call (800)434-4633 or go to www.iha4health.org and click on the "Books" and "Bookstore" links.
The Institute is a non-profit organization based in La Habra, California, that demonstrates innovative health care practices and educates health care professionals and consumers.
1. Driving when it's no longer safeThe elderly often associate mobility with their independence, but knowing when it is time to stop driving is important for the safety of everyone on the road. Decisions about when to stop driving should be made together with a family physician because chronological age alone does not determine someone's fitness to drive.
2. Fighting the aging process and its appearance
Refusing to wear a hearing aid, eyeglasses or dentures, and reluctance to ask for help or to use walking aids are all examples of this type of denial. This behavior may prevent the senior from obtaining helpful assistance with some of the problems of aging.
3. Reluctance to discuss intimate health problems with the doctor or health care provider Older Americans may not want to bring up sexual or urinary difficulties. Sometimes problems that the individual thinks are trivial, such as stomach upsets, constipation, or jaw pain, may require further evaluation.
4. Not understanding what the doctor told them about their health problem or medical treatment plan "I could not understand the doctor," or "He told me what to do, but you know me, I can't remember what he said" are typical complaints. Reluctance to ask the doctor to repeat information or to admit that they do not understand what is being said can result in serious health consequences.
5. Disregarding the serious potential for a fall Falls result in fractures and painful injuries, which sometimes take months to heal. To help guard against falling, the elderly should remove scatter rugs from the home and have adequate lighting in the home and work areas. They should wear sturdy and well-fitting shoes, and watch for slopes and cracks in sidewalks. Participating in exercise programs to improve muscle tone and strength is also helpful.
6. Failure to have a system or a plan for managing medicines
Missed medication doses can result in inadequate treatment of a medical condition. By using daily schedules, pill box reminders or check-off records, seniors can avoid missing medication doses. Because health care providers need to know all of the medicines that an elderly patient is taking, patients should maintain a complete list of all their prescription and over-the-counter medicines, including dosage and the reason that the medicine is being taken.
7. Not having a single primary care physician who looks at the overall medical plan of treatment Health problems may be overlooked when a senior goes to several different doctors or treatment programs, and multiple treatment regimens may cause adverse responses. The patient may be over or under-treated if a single physician is not evaluating the full medical treatment program.
8. Not seeking medical attention when early possible warning signs occur Reasons for such inaction and denial may include lack of money or reduced self worth due to age. "I am so old it doesn't matter anymore." Of course, such treatment delays can result in a more advanced stage of illness and a poorer prognosis.
9. Failure to participate in prevention programs Flu and pneumonia shots, routine breast and prostate exams are examples of readily available preventive health measures that seniors should utilize to remain healthy.
10. Not asking loved ones for help Many older Americans are simply too stubborn to ask for help, whether due to an understandable need for independence or because of early signs of dementia. It's important that elderly people alert family members or other loved ones to any signs of ill health or unusual feelings so that they can be assessed before the problem advances.
In an effort to help older American become less fearful of medical conditions and more empowered about their health, the IHA has published What to Do For Senior Health, an easy-to-understand, self-help medical book for senior citizens. For more information or to order the book, call (800)434-4633 or go to www.iha4health.org and click on the "Books" and "Bookstore" links.
Thursday, February 3, 2005
Tips on Having "The Talk" with Aging Parents
If you're a baby boomer, you may already have had "the talk" with your growing children. But have you had "the talk" with your aging parents as well?
That talk involves a frank discussion with parents about financial arrangements for the end of life. The discussion should include where the parents want to live, how they want to be cared for, how they want their money managed, and what kinds of burial or funeral arrangements they would prefer.
The start of a new year can be a good time to start thinking about parents' financial affairs, according to an in-depth article in the St. Louis Post-Dispatch on having "the talk".
The hard part about talking with aging parents, according to the article, is that they're used to being in charge, instead of getting advice from their children.
"It's one of the hardest things that we as adult children have to do," says Sandra Timmermann, a gerontologist and director of the MetLife Mature Market Institute. "We have to be brave and take a deep breath and plunge into the cold water."
The article outlines some of the topics that should be covered, including paying for long-term care and setting up powers of attorney, and offers strategies for starting a productive discussion. Some strategies:
*Use your own planning, or a friend's or relative's illness or death, as an opportunity to start a discussion
*Be direct and honest
*If your parents are unwilling to disclose a full list of their assets, perhaps they would be willing to write down account numbers without balances or make a list and tell you where the list is kept
*Meet with a lawyer to review the parents' wills, health care directives and powers of attorney for property and health care
*Don't expect to work out an entire plan for the end of life in one sitting
The full article, appeared in the 1/4/04, St. Louis Post-Dispatch.
That talk involves a frank discussion with parents about financial arrangements for the end of life. The discussion should include where the parents want to live, how they want to be cared for, how they want their money managed, and what kinds of burial or funeral arrangements they would prefer.
The start of a new year can be a good time to start thinking about parents' financial affairs, according to an in-depth article in the St. Louis Post-Dispatch on having "the talk".
The hard part about talking with aging parents, according to the article, is that they're used to being in charge, instead of getting advice from their children.
"It's one of the hardest things that we as adult children have to do," says Sandra Timmermann, a gerontologist and director of the MetLife Mature Market Institute. "We have to be brave and take a deep breath and plunge into the cold water."
The article outlines some of the topics that should be covered, including paying for long-term care and setting up powers of attorney, and offers strategies for starting a productive discussion. Some strategies:
*Use your own planning, or a friend's or relative's illness or death, as an opportunity to start a discussion
*Be direct and honest
*If your parents are unwilling to disclose a full list of their assets, perhaps they would be willing to write down account numbers without balances or make a list and tell you where the list is kept
*Meet with a lawyer to review the parents' wills, health care directives and powers of attorney for property and health care
*Don't expect to work out an entire plan for the end of life in one sitting
The full article, appeared in the 1/4/04, St. Louis Post-Dispatch.
Wednesday, January 5, 2005
What is an Elder Law Attorney?
Elder law attorneys are a unique and specialized group of attorneys who focus on the legal needs of the elderly. The concentration of elder law evolved in the mid 80's as the number of elders increased and their legal and financial needs became more complex. An Elder law attorney must consider the ever changing federal, state and local laws affecting such programs as: Medicare, Medicaid, Social Security and SSI when advising the elderly and their families and caregivers. This is an ongoing challenge.
The National Academy of Elder Law Attorneys is the profession association representing the 4,000 elder law attorneys. NAELA offers a special certification for elder law attorneys. A certified Elder Law Attorney(CELA) must meet certain requirements, pass a daylong exam and provide references from their peers. Recertification is required evry five years and to date there are only 300 Certified Elder Law Attorneys nationwide. When selecting an elder law attorney, you may reference The National Academy of Elder Law Attorney's web site, www.naela.com. Under the "Locate an Elder Law Attorney" feature, you will find Davidow, Davidow, Siegel & Stern listed with three CELA's attributed to our firm. In addition, Lawrence Davidow is the President-Elect of this organization for the 2005 term.
Key Questions to Ask the Attorney
*How long have you practiced elder law?
*What percentage of your practice is devoted to elder law?
*Are you a member of the National Academy of Elder Law Attorneys or an elder-law section of the local bar association?
*Are you a Certified Elder Law Attorney (CELA)?
*Do you make "house calls" or visit your clients in a nursing home?
Ways an Elder Law Attorney Can Help You
*Structure your assets to minimize taxes and avoid the inconvenience of probate
*Develop a plan to efficiently use available health insurance options including Medicare and Medicaid
*Establish trust to protect assets and reduce inheritance taxes
*Organize a house transfer to ensure your family keeps your home
*Develop a management plan to handle your finances including using Power of Attorneys, joint accounts and Trusts
*Complete medical advance directives as applicable to your state
*Coordinate your care team to provide home care, assisted living, or nursing home care.
*Advise you of local, state, and federal programs. For example, the New York State Medicaid consumer directed home care program and EPIC, New York State's prescription drug program.
Elder law attorneys, familiar with the medical and psychological issues associated with aging, typically work with other eldercare professionals to help you to access additional services to create a team approach. Included in this "care team" might be the person's doctor, social worker, geriatric case manager, accountant, financial planner and insurance agent. Your elder law attorney can serve as the coordinator of these other professionals all focused on providing you with a personalized plan that best meets your needs.
Source: Current Issues in Elder Law, Vol. 3, Issue 1, Winter 2004
The National Academy of Elder Law Attorneys is the profession association representing the 4,000 elder law attorneys. NAELA offers a special certification for elder law attorneys. A certified Elder Law Attorney(CELA) must meet certain requirements, pass a daylong exam and provide references from their peers. Recertification is required evry five years and to date there are only 300 Certified Elder Law Attorneys nationwide. When selecting an elder law attorney, you may reference The National Academy of Elder Law Attorney's web site, www.naela.com. Under the "Locate an Elder Law Attorney" feature, you will find Davidow, Davidow, Siegel & Stern listed with three CELA's attributed to our firm. In addition, Lawrence Davidow is the President-Elect of this organization for the 2005 term.
Key Questions to Ask the Attorney
*How long have you practiced elder law?
*What percentage of your practice is devoted to elder law?
*Are you a member of the National Academy of Elder Law Attorneys or an elder-law section of the local bar association?
*Are you a Certified Elder Law Attorney (CELA)?
*Do you make "house calls" or visit your clients in a nursing home?
Ways an Elder Law Attorney Can Help You
*Structure your assets to minimize taxes and avoid the inconvenience of probate
*Develop a plan to efficiently use available health insurance options including Medicare and Medicaid
*Establish trust to protect assets and reduce inheritance taxes
*Organize a house transfer to ensure your family keeps your home
*Develop a management plan to handle your finances including using Power of Attorneys, joint accounts and Trusts
*Complete medical advance directives as applicable to your state
*Coordinate your care team to provide home care, assisted living, or nursing home care.
*Advise you of local, state, and federal programs. For example, the New York State Medicaid consumer directed home care program and EPIC, New York State's prescription drug program.
Elder law attorneys, familiar with the medical and psychological issues associated with aging, typically work with other eldercare professionals to help you to access additional services to create a team approach. Included in this "care team" might be the person's doctor, social worker, geriatric case manager, accountant, financial planner and insurance agent. Your elder law attorney can serve as the coordinator of these other professionals all focused on providing you with a personalized plan that best meets your needs.
Source: Current Issues in Elder Law, Vol. 3, Issue 1, Winter 2004
Friday, December 24, 2004
Beware of Living Trust Scams
Unfortunately, it is becoming more and more common to hear about unscrupulous companies stepping up their efforts to market costly living trusts to older Americans, resulting in the jeopardizing of the buyer's economic security. According to the AARP, the Federal Trade Commission (FTC), and a number of state attorneys general, these high-pressure con artists have built an entire industry around older people's fears that their estates could be eaten up by probate costs or taxes, or that the distrubtion of their assets could be delayed for years. The solution, they claim, is a living trust. There is nothing wrong with the proper use of a living trust. Attorneys may recommend a living trust as an estate planning device for appropriate clients. However, salespeople masquerading as professional estate planners are working hard to try to convince older Americans that such trusts are for everyone. The problem is that many people don't need a living trust, a trust from a "kit" may not meet a particular client's needs and often these companies charge more than the service is worth. In addition, according to the FTC, some companies are using the living trust concept merely as a way to gain access to consumers' financial information and sell them other financial products, such as insurance annuities. Among the various dangers of "one-size-fits-all" living trusts, say AARP officials, is that in many cases they won't make the grantor and spouse eligible for Medicaid reimbursement of nursing home costs. In addition, some trusts improperly instruct the trustee to distribute property to beneficiaries immediately upon the death of the grantor. If creditors make a claim against the trust after asset distribution, the trustee becomes personally liable for any valid claims against the trust. According to an AARP study published in 2000, about four million people older than 50 with less than $25,000 in annual income may have purchased costly, unnecessary and potentially dangerous living trusts as a result of high-pressure sales tactics. The Federal Trade Commission has a checklist for consumers to go through before they sign any papers to create a will, a living trust or any other kind of trust. The Healthcare and Elder Law Programs Corp. (H.E.L.P.) has also created a website, annuitytruth.org to help make better decisions about annuities. Better yet, seek the advice of a qualified elder law attorney.
Thursday, December 9, 2004
Why You Need a Health Care Proxy and a Living Will
A recent Nassau County Supreme Court case highlights the importance of having a Health Care Proxy and a Living Will. A Health Care Proxy is the approved document in New York which appoints an agent to carry out your wishes for health care in the event you are not able to communicate your wishes to your doctor. It usually states that your agent knows your wishes but may or may not state those wishes in detail. Without such a document, you may be kept alive no matter what, even if it involves extraordinary measures including surgery, blood transfusions, etc. A Living Will is a document which articulates your wishes specifically and can be used as a backup to the Health Care Proxy in the event of a dispute.
In the instant case, Roger Russell brought an action to resume artificial nutrition for his aunt, margaret Russell, after her court appointed guardian authorized the withdrawal of her feeding tubes. Mrs. Russell was residing in a nursing home suffering from advanced Alzheimer's disease, breast cancer and the effects of a prior stroke. She was unable to express her wishes about her healthcare.
In 1999, Mrs. Russell executed a Health Care Proxy appointing her nephew to act as her agent to make health care decisions. In 1991, a previous proxy stated that she did not want "heroic measures" taken to save her life and did not wish to "receive artificially administered feeding or fluids". In 1995, Mrs. Russell expanded on the 1991 proxy by executing a Living Will stating she did not want cardiac resuscitation, tube feeding or antibiotics and wanted maximum pain relief. In January of 2000, appointment of Mr. Russell as Mrs. Russell's agent under her Health Care Proxy was revoked when the judge issued a restraining order against him for "financial and personal" abuse of Mrs. Russell.
Thereafter, authority to discontinue the feeding tube was given to Mrs. Russell's court appointed guardian. Mr. Russell brought an action to challenge the court's decision. Justice Frank S. Rossetti denied Mr. Russell's aaction and allowed the feeding tube to be discontinued based on a review of her wishes stated in both of her health care proxies and her living will.
This case highlightsthe interaction of Health Care Proxies and Living Wills and the importance of having both documents. It should be noted that states such as Florida honor Living Wills rather than Health Care Proxies. If you travel, copies of both should be taken with you. A knowledgeable Elder Law attorney can prepare these documents for you to ensure they will contain all appropriate language to effectuate your health care decisions.
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