New York is only one of four states that still has not defined what marriage consists of, leaving many couples confused and unprepared for the future. The majority of the other states define marriage as a union between one man and one woman. This issue may not seem important, but there are over fifteen hundred federal and state laws (including child visitation rights, power of attorney, and tax benefits) in which benefits, rights and privileges are contingent on marital status.
New York has made the news recently because of the landmark decision of Hernandez v. Robles which holds that denying marriage to same-sex couples violates New York’s constitutional guarantees of equality, liberty and privacy for all New Yorkers. The trial court decided the case in February 2005 and the case was appealed to the appeals court with oral arguments scheduled to start in the fall. The trial court decision means that the New York City clerk may no longer deny marriage licenses to same-sex couples. Since the case was appealed, the judge’s decision is not yet valid.
State Supreme Court Justice Doris Ling reasoned it unfair that in New York the "plaintiffs couples may not own property by their entireties; file joint state income tax returns; obtain health insurance through a partner's coverage; obtain joint liability or homeowner's insurance; collect from a partner's pension benefits; have one partner of the two-women couples be the legal parent of the other partner's artificially inseminated child, without the expense of an adoption proceeding; invoke the spousal evidentiary privilege; recover damages for an injury to, or the wrongful death of, a partner; have the right to make important medical decisions for a partner in emergencies; inherit from a deceased partner's intestate estate; or determine a partner's funeral and burial arrangements."
In addition to marriage, New York has no laws either allowing or prohibiting domestic relation agreements or civil unions between same-sex couples. Unlike marriage, civil unions and domestic partnerships are invalid outside the state in which they occur and do not provide any federal marriage benefits. Because New York does not have any civil union laws giving certain rights to gay and lesbian couples, it is important to create a domestic relationship agreement with the help of a knowledgeable estate planning attorney.
It is crucial to plan ahead because unmarried partners face a lot more obstacles than their married counterparts. Issues that affect domestic partners such as power of attorney have recently surfaced in the wake of Terri Schiavo case. In addition, if you plan on sharing all or even a part of your estate with your partner, it is critical that the details are recorded in a written document. If you are currently living together with a partner, it may be necessary and surely advisable to speak to a specialized estate planning attorney to help create a domestic relationship agreement to ensure that you and your loved ones are protected.
Thursday, September 22, 2005
Wednesday, September 14, 2005
Family Health Care Decisions Act - Part 2
Surrogates can make decisions to withhold or withdraw life-sustaining treatment if treatment would be an excessive burden to the patient and the patient is terminally or permanently unconscious, or if the patient has an irreversible or incurable condition and that treatment would involve such pain and suffering that it would reasonably be deemed inhume or “excessively burdensome” under the circumstances. The determination of terminal illness, permanent unconsciousness, or irreversible or incurable condition must be made by two physicians in accord with accepted medical practice. It is important to note that at any time, a patient, surrogate, or parent of a minor child may revoke consent to withhold or withdraw life-sustaining treatment by notifying a physician or member of the nursing staff.
Hospitals and nursing homes must also adopt written policies requiring implementation and regular review of decisions to withhold or withdraw life-sustaining treatment, in accord with accepted medical standards. In addition to adopting written policies, hospitals and nursing homes must also establish ethics review committees. Committees must be interdisciplinary and include at least two individuals who have demonstrated an interest in or commitment to patients’ rights. In a nursing home, committees must include a member of the resident’s council or someone who is not affiliated with the facility but who has or had a family member as a resident.
Because more people, including surrogates, professionals, and committee members, are now involved in the decision making process, liability issues naturally arise. An important provision of proposed Article 29-D is that it protects surrogates, health care professionals, and committee members from both civil and criminal liability. As long as a member acts in good faith, he or she is protected from civil and criminal liability as well as charges of professional misconduct.
Even though our current law does not explicitly recognize the authority of family members to consent to treatment of an incapacitated patient, health care providers usually turn to family members for consent. So in that regard, the proposed bill codifies an already accepted practice. However, the New York Court of Appeals has ruled that family members or others close to patients cannot decide about life-sustaining treatment in the absence of a healthcare proxy. The Family Health Care Decisions Act will finally allow for a family member to decide to forego or continue life-sustaining treatment for a patient. This proposed change in the law will add New York to the majority of states that already permit family members to make life-sustaining treatment decisions. More importantly, this proposal would minimize disputes over decision making authority and would keep decisions at a informal personal level with minimal court involvement. Families will finally have access to incapacitated patients’ medical records allowing them to decide what treatment is in their loved one’s best interests.
It is critical to understand that although Family Health Care Decisions Act is an important and necessary step for New York, it does not replace the need for a health care proxy. The purpose of this legislation is to provide an acceptable substitute process in the event there is no health care proxy. Everyone over 18 years of age, regardless of health condition should have a health care proxy as it will always remain the preferred method of planning for incapacity.
Hospitals and nursing homes must also adopt written policies requiring implementation and regular review of decisions to withhold or withdraw life-sustaining treatment, in accord with accepted medical standards. In addition to adopting written policies, hospitals and nursing homes must also establish ethics review committees. Committees must be interdisciplinary and include at least two individuals who have demonstrated an interest in or commitment to patients’ rights. In a nursing home, committees must include a member of the resident’s council or someone who is not affiliated with the facility but who has or had a family member as a resident.
Because more people, including surrogates, professionals, and committee members, are now involved in the decision making process, liability issues naturally arise. An important provision of proposed Article 29-D is that it protects surrogates, health care professionals, and committee members from both civil and criminal liability. As long as a member acts in good faith, he or she is protected from civil and criminal liability as well as charges of professional misconduct.
Even though our current law does not explicitly recognize the authority of family members to consent to treatment of an incapacitated patient, health care providers usually turn to family members for consent. So in that regard, the proposed bill codifies an already accepted practice. However, the New York Court of Appeals has ruled that family members or others close to patients cannot decide about life-sustaining treatment in the absence of a healthcare proxy. The Family Health Care Decisions Act will finally allow for a family member to decide to forego or continue life-sustaining treatment for a patient. This proposed change in the law will add New York to the majority of states that already permit family members to make life-sustaining treatment decisions. More importantly, this proposal would minimize disputes over decision making authority and would keep decisions at a informal personal level with minimal court involvement. Families will finally have access to incapacitated patients’ medical records allowing them to decide what treatment is in their loved one’s best interests.
It is critical to understand that although Family Health Care Decisions Act is an important and necessary step for New York, it does not replace the need for a health care proxy. The purpose of this legislation is to provide an acceptable substitute process in the event there is no health care proxy. Everyone over 18 years of age, regardless of health condition should have a health care proxy as it will always remain the preferred method of planning for incapacity.
Thursday, September 8, 2005
Family Health Care Decisions Act - Part I
Family Health Care Decisions Act
Under current New York law, if one becomes incapacitated, and is no longer able to make health care decisions, there is no person (spouse, child, or otherwise) who can legally make those decisions. In order to have someone make medical decisions for another in New York, a person must have a health care proxy. A health care proxy allows adults to delegate authority to another adult to decide about all health care treatment, including life-sustaining measures in the event patients are unable to decide about treatment for themselves. If there is no health care proxy, only a court-appointed guardian can make health care decisions for an incapacitated individual. Court proceedings are usually burdensome, lengthy, and expensive. Few families have the emotional or financial resources to pursue judicial relief in these unfortunate situations. And we are all too familiar with cases spiraling out of control such as the case of Terry Schiavo. The end result in many cases is that some incapacitated individuals are denied specific treatment, while others may receive treatment that violates their wishes along with their religious and moral beliefs. Proposed legislation would help to avoid future situations like the Schiavos’ by filling the void in the law regarding the authority to make health care decisions for a family member without a health care proxy.
Our current law is at odds with at least 26 other states, where either statutes or court decisions expressly permit family members to decide about life-sustaining treatment. Along with Missouri, New York is the only state that explicitly denies family members this authority. The proposal would amend the Public Health Law and bring New York up to date with the majority of other states. The new proposed Family Health Care Decisions Act (article 29-D of the Public Health Law), would finally grant family members and close friends the authority to make health care decisions in the event a loved one becomes incapacitated.
The proposed legislation has three main sections in which it outlines the proper procedures to use in event someone close to you becomes incapacitated. First, it creates a process for determining incapacity. Second, it establishes a priority list of people who may act as surrogate. Third, the proposed legislation sets specific standards for surrogates’ decisions.
Under the proposed bill, there would be a presumption that every adult has the capacity to decide about treatment unless otherwise determined pursuant to the procedures set forth in the bill, or pursuant to a court order. An attending physician must determine that a patient lacks capacity to make health care decisions. In a residential health care facility, at least one other health care professional must concur. In a general hospital, the concurrence is only necessary for a decision to forgo life-sustaining treatment. Hospitals must draft and adopt written policies identifying professionals qualified to provide the concurring opinion.
The bill proposes that patients remain empowered and make a final decision regarding their capacity, surrogates, and health care options. If a patient is declared incapacitated, health care professionals must inform the patient of the determination of the incapacity. If the patient objects to the determination of incapacity, the appointment of a surrogate, or to a surrogate’s decision, the patient’s objection prevails, unless a court determines otherwise.
The bill creates a list of possible surrogates and their order in making decisions. A surrogate is defined as a person selected to make a health care decision for a patient. The order of authority is as follows:
1. court-appointed guardian
2. spouse
3. adult son or daughter
4. a parent
5. an adult brother or sister
6. a close adult friend or relative familiar with the patient’s personal, religious, and moral views regarding health care.
It is important to note that courts can appoint any person from the surrogate list to act as surrogate, regardless of that person’s priority on the list if the court determines that such appointment would best accord with the patient’s wishes.
The surrogate will be able to make all the health care decisions for the patient that the adult patient could make for himself or herself. A decision by a surrogate cannot supercede or override prior decisions or wishes, whether orally or written, by a competent patient. Surrogates must decide about treatment based on the patient’s wishes, including the patient’s religious and moral beliefs. If a patient’s wishes are not known, the surrogate must try to make a decision that would be in the patient’s best wishes. Also, Surrogates have a right and duty to obtain any information regarding a patient’s condition. In addition, health care providers have a duty to give the surrogate medical information and clinical records necessary to make informed decisions for the patient. Presumably, this language should allow a Surrogate to obtain medical information and/or documentation notwithstanding HIPAA confidentiality rules.
Health care providers are not at the mercy of the surrogates, however. The bill grants surrogates the authority to consent to and to refuse treatment, but does not obligate health care providers to offer or provide treatment that they would have no duty to offer or provide to a competent patient because the treatment is medically futile or inappropriate. Health care providers are able to support their conclusion by referring to its ethics committee guidelines. However, if any hospital or attending physician refuses to honor a health care decision made by a Surrogate, the hospital will not be entitled to compensation for treatment or services provided without the Surrogate’s consent.
Under current New York law, if one becomes incapacitated, and is no longer able to make health care decisions, there is no person (spouse, child, or otherwise) who can legally make those decisions. In order to have someone make medical decisions for another in New York, a person must have a health care proxy. A health care proxy allows adults to delegate authority to another adult to decide about all health care treatment, including life-sustaining measures in the event patients are unable to decide about treatment for themselves. If there is no health care proxy, only a court-appointed guardian can make health care decisions for an incapacitated individual. Court proceedings are usually burdensome, lengthy, and expensive. Few families have the emotional or financial resources to pursue judicial relief in these unfortunate situations. And we are all too familiar with cases spiraling out of control such as the case of Terry Schiavo. The end result in many cases is that some incapacitated individuals are denied specific treatment, while others may receive treatment that violates their wishes along with their religious and moral beliefs. Proposed legislation would help to avoid future situations like the Schiavos’ by filling the void in the law regarding the authority to make health care decisions for a family member without a health care proxy.
Our current law is at odds with at least 26 other states, where either statutes or court decisions expressly permit family members to decide about life-sustaining treatment. Along with Missouri, New York is the only state that explicitly denies family members this authority. The proposal would amend the Public Health Law and bring New York up to date with the majority of other states. The new proposed Family Health Care Decisions Act (article 29-D of the Public Health Law), would finally grant family members and close friends the authority to make health care decisions in the event a loved one becomes incapacitated.
The proposed legislation has three main sections in which it outlines the proper procedures to use in event someone close to you becomes incapacitated. First, it creates a process for determining incapacity. Second, it establishes a priority list of people who may act as surrogate. Third, the proposed legislation sets specific standards for surrogates’ decisions.
Under the proposed bill, there would be a presumption that every adult has the capacity to decide about treatment unless otherwise determined pursuant to the procedures set forth in the bill, or pursuant to a court order. An attending physician must determine that a patient lacks capacity to make health care decisions. In a residential health care facility, at least one other health care professional must concur. In a general hospital, the concurrence is only necessary for a decision to forgo life-sustaining treatment. Hospitals must draft and adopt written policies identifying professionals qualified to provide the concurring opinion.
The bill proposes that patients remain empowered and make a final decision regarding their capacity, surrogates, and health care options. If a patient is declared incapacitated, health care professionals must inform the patient of the determination of the incapacity. If the patient objects to the determination of incapacity, the appointment of a surrogate, or to a surrogate’s decision, the patient’s objection prevails, unless a court determines otherwise.
The bill creates a list of possible surrogates and their order in making decisions. A surrogate is defined as a person selected to make a health care decision for a patient. The order of authority is as follows:
1. court-appointed guardian
2. spouse
3. adult son or daughter
4. a parent
5. an adult brother or sister
6. a close adult friend or relative familiar with the patient’s personal, religious, and moral views regarding health care.
It is important to note that courts can appoint any person from the surrogate list to act as surrogate, regardless of that person’s priority on the list if the court determines that such appointment would best accord with the patient’s wishes.
The surrogate will be able to make all the health care decisions for the patient that the adult patient could make for himself or herself. A decision by a surrogate cannot supercede or override prior decisions or wishes, whether orally or written, by a competent patient. Surrogates must decide about treatment based on the patient’s wishes, including the patient’s religious and moral beliefs. If a patient’s wishes are not known, the surrogate must try to make a decision that would be in the patient’s best wishes. Also, Surrogates have a right and duty to obtain any information regarding a patient’s condition. In addition, health care providers have a duty to give the surrogate medical information and clinical records necessary to make informed decisions for the patient. Presumably, this language should allow a Surrogate to obtain medical information and/or documentation notwithstanding HIPAA confidentiality rules.
Health care providers are not at the mercy of the surrogates, however. The bill grants surrogates the authority to consent to and to refuse treatment, but does not obligate health care providers to offer or provide treatment that they would have no duty to offer or provide to a competent patient because the treatment is medically futile or inappropriate. Health care providers are able to support their conclusion by referring to its ethics committee guidelines. However, if any hospital or attending physician refuses to honor a health care decision made by a Surrogate, the hospital will not be entitled to compensation for treatment or services provided without the Surrogate’s consent.
Thursday, September 1, 2005
Estate Planning for Unmarried Couples Can Be More Complex
The American legal system makes assumptions about married couples. For example, default provisions give a husband or wife the power to make at least some medical decisions for a spouse who is no longer competent to direct his or her own treatment. The surviving spouse usually has first priority to administer a deceased spouse's estate, and will usually inherit most of the estate if the deceased spouse did not sign a will.
None of those automatic protections apply to unmarried couples, regardlesss of the strength or duration of their commitment. Many heterosexual couples chose not to marry for one reason or another, and thereby forgo the protections and benefits of marriage laws. Gay and lesbian couples, of course, are not provided an opportunity to duplicate the marriage relationship except in narrow circumstances.
That makes estate planning much more important for couples who are committed to one another but unmarried - for whatever reason. A sampling of the issues faced by such couples:
Powers of Attorney. Neither partner will have any automatic right to make decisions for the other in the event of a medical catastrophe. In fact, neither partner will have any right to visit the other in the hospital setting, to talk to doctors or even to get status reports.
Living Wills. Without clear instructions (and a health care proxy), each partner runs the risk of leaving family members in charge of their medical decisions. That may be fine for some, but terrifying for others.
Wills and Trusts. Assuming that each paratner wants to share a part of his or her estate with the survivor, it is essential that those provisions be reduced to writing. Relying on the goodwill of family members, or spoken (even clearly spoken) instructions, is simply begging for legal trouble, expense and personal devastation for the survivor.
Partnership agreements. If partners have any desire to protect one another (and, not incidentally, to minimize legal costs and acrimony) in the event that the relationship should end, then a written agreement is a necessity. Simply placing assets in joint names may not be sufficient, and may even be dangerous in ways not experienced by married couples. The partnership agreement may resemble a prenuptial agreement often signed by married couples.
Joint parenting agreement. Family realtionships are much more complicated today than the legal system is prepared to address. Unmarried couples, even same-sex couples, may have adopted one another's children, or jointly adolpted a child not biologically related to either of them. If one partner dies or the couple splits up, parenting and even visitation rights may be difficult to address. A written agreement may help ease the transition.
Source: Elder Law Issues, Volume 12, Issue 51.
None of those automatic protections apply to unmarried couples, regardlesss of the strength or duration of their commitment. Many heterosexual couples chose not to marry for one reason or another, and thereby forgo the protections and benefits of marriage laws. Gay and lesbian couples, of course, are not provided an opportunity to duplicate the marriage relationship except in narrow circumstances.
That makes estate planning much more important for couples who are committed to one another but unmarried - for whatever reason. A sampling of the issues faced by such couples:
Powers of Attorney. Neither partner will have any automatic right to make decisions for the other in the event of a medical catastrophe. In fact, neither partner will have any right to visit the other in the hospital setting, to talk to doctors or even to get status reports.
Living Wills. Without clear instructions (and a health care proxy), each partner runs the risk of leaving family members in charge of their medical decisions. That may be fine for some, but terrifying for others.
Wills and Trusts. Assuming that each paratner wants to share a part of his or her estate with the survivor, it is essential that those provisions be reduced to writing. Relying on the goodwill of family members, or spoken (even clearly spoken) instructions, is simply begging for legal trouble, expense and personal devastation for the survivor.
Partnership agreements. If partners have any desire to protect one another (and, not incidentally, to minimize legal costs and acrimony) in the event that the relationship should end, then a written agreement is a necessity. Simply placing assets in joint names may not be sufficient, and may even be dangerous in ways not experienced by married couples. The partnership agreement may resemble a prenuptial agreement often signed by married couples.
Joint parenting agreement. Family realtionships are much more complicated today than the legal system is prepared to address. Unmarried couples, even same-sex couples, may have adopted one another's children, or jointly adolpted a child not biologically related to either of them. If one partner dies or the couple splits up, parenting and even visitation rights may be difficult to address. A written agreement may help ease the transition.
Source: Elder Law Issues, Volume 12, Issue 51.
Thursday, August 25, 2005
New Bill Affecting Disposition of Remains
A new bill has passed through both houses of the New York State legislature last week relating to the rights of certain individuals of a decedent to control the disposition of such decedent's remains regardless of whether of a written document exists. The bill creates a priority list of those persons who may have the right to control the disposition of the decedent's remains if no written instrument specifies. In other words, the bill creates a list of people who can carry out their loved ones' burial wishes, whether it be a cemetery burial, cremation, or even donating the body and organs to medical school.
One major part of the bill gives domestic partners the same priority status as surviving spouses. The bill defines domestic partnerships using three categories. First, a domestic partner is anyone who is formally a party in a domestic partnership under the laws of the United States or of any state, local, or foreign jurisdiction. Second, if there is no formal domestic partnership, then the surviving partner must be formally recognized as a beneficiary or covered person under the other partner's employment benefits or health insurance. Lastly, if the partners do not meet either of the previous two requirements, they would have to provide documentation for proof of six months of cohabitation to show dependence or mutual independence on the other partner for support, indicating a mutual intent to be domestic partners.
The proposed order of people who will have the right to control the disposition and the costs associated are (l) the person designated in a will or other written instrument (such as a proxy); (2) the decedent's surviving spouse or domestic partner; (3) any surviving children over 18 years old; (4) either of the decedent's surviving parents; (5) any of the decedent's surviving siblings; (6) a guardian; or (7) a fiduciary of the deceased's estate.
The bill also creates a standard proxy form authorizing the appointment of an agent along with a space with special directions. The proxy is important because although a person can specify her wishes in a will, wills are not generally probated until long after death wheras disposition normally happens within a week after death. Overall, this bill fills an important gap in health law by allowing people to plan ahead to ensure their wishes are carried out at their time of death without any confusion and court proceedings over the very private matter of disposition of their remains.
One major part of the bill gives domestic partners the same priority status as surviving spouses. The bill defines domestic partnerships using three categories. First, a domestic partner is anyone who is formally a party in a domestic partnership under the laws of the United States or of any state, local, or foreign jurisdiction. Second, if there is no formal domestic partnership, then the surviving partner must be formally recognized as a beneficiary or covered person under the other partner's employment benefits or health insurance. Lastly, if the partners do not meet either of the previous two requirements, they would have to provide documentation for proof of six months of cohabitation to show dependence or mutual independence on the other partner for support, indicating a mutual intent to be domestic partners.
The proposed order of people who will have the right to control the disposition and the costs associated are (l) the person designated in a will or other written instrument (such as a proxy); (2) the decedent's surviving spouse or domestic partner; (3) any surviving children over 18 years old; (4) either of the decedent's surviving parents; (5) any of the decedent's surviving siblings; (6) a guardian; or (7) a fiduciary of the deceased's estate.
The bill also creates a standard proxy form authorizing the appointment of an agent along with a space with special directions. The proxy is important because although a person can specify her wishes in a will, wills are not generally probated until long after death wheras disposition normally happens within a week after death. Overall, this bill fills an important gap in health law by allowing people to plan ahead to ensure their wishes are carried out at their time of death without any confusion and court proceedings over the very private matter of disposition of their remains.
Thursday, August 18, 2005
Medicare Part D - Part 2
What happens if I have Medicaid?
If you currently have Medicaid, you will lose your Medicaid prescription drug coverage on January 1, 2006 and will automatically be enrolled in a new plan through Medicare. In October 2005, letters will be mailed out to Medicaid recipients alerting them which plan they will be enrolled in if they do not choose one by December 31, 2005. In order to make sure that your drugs will be covered, you should select a plan that suits your needs.
What about my Medigap plan?
Starting January 1, 2006, any person enrolled in Part D cannot buy or renew Medigap plans H, I, and J. If you have a Medigap H, I, or J plan and want to keep its prescription drug coverage, you cannot enroll in Part D. But, if you choose to later enroll in a Part D plan and lose your Medigap drug coverage, you will be charged a penalty premium. If you want to keep your Medigap plan and enroll in Part D, your Medigap plan will be modified to exclude prescription drug coverage after Part D becomes effective and your premium will be modified accordingly.
Can I supplement my Part D drug coverage at all?
Yes, individuals who enroll in Part D prescription drug coverage can still supplement their coverage from other sources. Supplemental coverage can either offer more comprehensive coverage than Medicare or it may choose to wrap around the Medicaid Part D benefit and help with cost sharing. One option is help through a state pharmacy assistance program (such as EPIC in New York). Employers and unions can also choose to help with supplemental coverage as well.
What about my Medicare discount prescription drug card I have?
The Medicare discount card program will be phased out once the Part D prescription drug benefits begin. The program will be discontinued either when your Part D plan takes effect or at the end of the initial enrollment period on May 15, 2006, whichever comes first.
When and how can I sign up?
There is a six month initial enrollment period starting on November 15, 2005 and continuing until May 15, 2006. If you enroll before or on December 31, 2005, your new plan will start on January 1, 2006 and you will see no lapse in coverage. If you choose to enroll after January 1, 2006, your plan will start on the 1st of the following month. You can currently apply for low income assistance either through Social Security (www.ssa.gov) or through your state Medicaid office. To enroll in a Part D plan, you will apply directly to Medicare (www.cms.gov) but can only apply once the enrollment period begins.
What should I do?
Since Medicare Part D is new, there are still many uncertainties regarding changes in coverage. It is advisable to speak to a knowledgeable Elder Law attorney aware of all the intricacies of Medicare law in order take full advantage of the new Medicare drug coverage.
If you currently have Medicaid, you will lose your Medicaid prescription drug coverage on January 1, 2006 and will automatically be enrolled in a new plan through Medicare. In October 2005, letters will be mailed out to Medicaid recipients alerting them which plan they will be enrolled in if they do not choose one by December 31, 2005. In order to make sure that your drugs will be covered, you should select a plan that suits your needs.
What about my Medigap plan?
Starting January 1, 2006, any person enrolled in Part D cannot buy or renew Medigap plans H, I, and J. If you have a Medigap H, I, or J plan and want to keep its prescription drug coverage, you cannot enroll in Part D. But, if you choose to later enroll in a Part D plan and lose your Medigap drug coverage, you will be charged a penalty premium. If you want to keep your Medigap plan and enroll in Part D, your Medigap plan will be modified to exclude prescription drug coverage after Part D becomes effective and your premium will be modified accordingly.
Can I supplement my Part D drug coverage at all?
Yes, individuals who enroll in Part D prescription drug coverage can still supplement their coverage from other sources. Supplemental coverage can either offer more comprehensive coverage than Medicare or it may choose to wrap around the Medicaid Part D benefit and help with cost sharing. One option is help through a state pharmacy assistance program (such as EPIC in New York). Employers and unions can also choose to help with supplemental coverage as well.
What about my Medicare discount prescription drug card I have?
The Medicare discount card program will be phased out once the Part D prescription drug benefits begin. The program will be discontinued either when your Part D plan takes effect or at the end of the initial enrollment period on May 15, 2006, whichever comes first.
When and how can I sign up?
There is a six month initial enrollment period starting on November 15, 2005 and continuing until May 15, 2006. If you enroll before or on December 31, 2005, your new plan will start on January 1, 2006 and you will see no lapse in coverage. If you choose to enroll after January 1, 2006, your plan will start on the 1st of the following month. You can currently apply for low income assistance either through Social Security (www.ssa.gov) or through your state Medicaid office. To enroll in a Part D plan, you will apply directly to Medicare (www.cms.gov) but can only apply once the enrollment period begins.
What should I do?
Since Medicare Part D is new, there are still many uncertainties regarding changes in coverage. It is advisable to speak to a knowledgeable Elder Law attorney aware of all the intricacies of Medicare law in order take full advantage of the new Medicare drug coverage.
Thursday, August 11, 2005
What is Medicare Part D? - Part 1
What is Medicare Part D?
Starting January 1, 2006, Medicare will begin to offer prescription drug plans to help with paying rising drug costs. To be eligible for Medicare Part D, you must be enrolled in either Medicare Part A or B. It is important that you understand the changes affecting your prescription drug coverage choices. If you currently have Medicaid drug coverage, you will lose it and automatically be enrolled in a new plan through Medicare. You will still have your other Medicaid benefits. There are a number of different prescription drug plans (called “PDPs”) available through Medicare Part D that are offered by private companies. Some plans will offer drugs that other plans do not so it is important to carefully select the right PDP for you to make sure that your medication is included under the plan. Information about specific PDPs will be made available starting in October 2005.
Do I have to have Medicare Part D? And if so, what will it cost me?
No, you do not have to enroll in Part D. It is completely voluntary and you may continue to keep your current prescription drug coverage (either through your employer, union, etc) if you wish. If you later decide to enroll in Part D, however, you may be faced with a late enrollment penalty.
If you decide to enroll in the basic benefit plan, there will be an approximate drug coverage premium of $37 a month. You also have to pay a $250 deductible and then 25% co-insurance for drug costs. If your drugs cost more than $2,250 for the year, you will have to pay 100% of the cost until the cost of covered drugs reaches $5,100 (called a “doughnut hole”). Therefore, beneficiaries will have to pay a total of $3600 of out of pocket costs before Medicare will begin to pay 95% of the formulary drug prices.
Only out of pocket costs for formulary drugs that are paid for by you, a family member, or another person acting on your behalf, or a state pharmacy assistance program count toward your annual out of pocket limit of $3600. Payments by other insurance (such as employer or union plans) do not count. After $5,100 in total expenses, you will receive catastrophic coverage and will only have a 5% coinsurance or a co-payment of $2 for generic drugs or $5 for brand name drugs, whichever is greater.
If you qualify for low income assistance, costs will decrease dramatically. People currently receiving Medicaid, MSP, or SSI will automatically receive low income assistance and will only pay a small co-payment for prescription drugs. Other people will be eligible for low income assistance if their income is less than 150% of the federal poverty level ($14,595/year or $19,485 for a couple) and have limited resources($10,000 or $20,00 for a couple).
What should I think about when selecting a Part D plan?
It is important to realize that all plans are not created equal. Plans are likely to vary not only in the cost but also in the type of drugs offered. PDPs are given flexibility as long as the total value of their plan is the same as the basic benefit. Therefore some plans may have higher co-payments than others while others have lower premiums.
In addition, PDPs have considerable discretion to decide which specific drugs to include on their formularies. Therefore, PDPs do not necessarily have to pay for all the drugs that are covered by Medicare Part D. If you need a drug that is not on your plan’s formulary, you will have to pay full price for the drug. Additionally, payments for non-formulary drugs will not count toward your out of pocket expenses. Each PDP also gets to decide which pharmacies to use. It is possible that a nursing home will no longer be able to receive residents’ drugs from a single pharmacy but will have to deal with a number of pharmacies since residents are likely to have different PDPs.
Plans can vary on a wide array of matters. Some plans might also include options for mail-order drugs. Additionally, plans may place limitations on the number of prescriptions per month or the number of pills allowed per prescription. Each plan may have a different procedure and steps to go through for an appeal to get your medicine because the plans are offered by a multitude of private companies rather than a single entity. Because of all the variations in Medicare Part D plans, it is extremely important to carefully choose and select a plan that meets your needs.
Starting January 1, 2006, Medicare will begin to offer prescription drug plans to help with paying rising drug costs. To be eligible for Medicare Part D, you must be enrolled in either Medicare Part A or B. It is important that you understand the changes affecting your prescription drug coverage choices. If you currently have Medicaid drug coverage, you will lose it and automatically be enrolled in a new plan through Medicare. You will still have your other Medicaid benefits. There are a number of different prescription drug plans (called “PDPs”) available through Medicare Part D that are offered by private companies. Some plans will offer drugs that other plans do not so it is important to carefully select the right PDP for you to make sure that your medication is included under the plan. Information about specific PDPs will be made available starting in October 2005.
Do I have to have Medicare Part D? And if so, what will it cost me?
No, you do not have to enroll in Part D. It is completely voluntary and you may continue to keep your current prescription drug coverage (either through your employer, union, etc) if you wish. If you later decide to enroll in Part D, however, you may be faced with a late enrollment penalty.
If you decide to enroll in the basic benefit plan, there will be an approximate drug coverage premium of $37 a month. You also have to pay a $250 deductible and then 25% co-insurance for drug costs. If your drugs cost more than $2,250 for the year, you will have to pay 100% of the cost until the cost of covered drugs reaches $5,100 (called a “doughnut hole”). Therefore, beneficiaries will have to pay a total of $3600 of out of pocket costs before Medicare will begin to pay 95% of the formulary drug prices.
Only out of pocket costs for formulary drugs that are paid for by you, a family member, or another person acting on your behalf, or a state pharmacy assistance program count toward your annual out of pocket limit of $3600. Payments by other insurance (such as employer or union plans) do not count. After $5,100 in total expenses, you will receive catastrophic coverage and will only have a 5% coinsurance or a co-payment of $2 for generic drugs or $5 for brand name drugs, whichever is greater.
If you qualify for low income assistance, costs will decrease dramatically. People currently receiving Medicaid, MSP, or SSI will automatically receive low income assistance and will only pay a small co-payment for prescription drugs. Other people will be eligible for low income assistance if their income is less than 150% of the federal poverty level ($14,595/year or $19,485 for a couple) and have limited resources($10,000 or $20,00 for a couple).
What should I think about when selecting a Part D plan?
It is important to realize that all plans are not created equal. Plans are likely to vary not only in the cost but also in the type of drugs offered. PDPs are given flexibility as long as the total value of their plan is the same as the basic benefit. Therefore some plans may have higher co-payments than others while others have lower premiums.
In addition, PDPs have considerable discretion to decide which specific drugs to include on their formularies. Therefore, PDPs do not necessarily have to pay for all the drugs that are covered by Medicare Part D. If you need a drug that is not on your plan’s formulary, you will have to pay full price for the drug. Additionally, payments for non-formulary drugs will not count toward your out of pocket expenses. Each PDP also gets to decide which pharmacies to use. It is possible that a nursing home will no longer be able to receive residents’ drugs from a single pharmacy but will have to deal with a number of pharmacies since residents are likely to have different PDPs.
Plans can vary on a wide array of matters. Some plans might also include options for mail-order drugs. Additionally, plans may place limitations on the number of prescriptions per month or the number of pills allowed per prescription. Each plan may have a different procedure and steps to go through for an appeal to get your medicine because the plans are offered by a multitude of private companies rather than a single entity. Because of all the variations in Medicare Part D plans, it is extremely important to carefully choose and select a plan that meets your needs.
Subscribe to:
Posts (Atom)