Medicare

Medicare, Rehab, and “Failure to Improve”

Posted on March 13, 2017 by Jim Koewler — No Comments ↓

After a hospital stay, Medicare-covered people may need rehab to continue improving from the treatment that the hospital provided. (As discussed in the March 10, 2017 installment, the hospital stay must be at least three days and a full “admission” to the hospital.) In the past, as a way to save money, Medicare would cut off rehab for someone who wasn’t getting better (or wasn’t getting better fast enough.)

BUT, Medicare’s rules don’t allow for a cut-off of rehab for a failure to improve. Medicare got sued to stop using the “improvement” standard. A class action lawsuit was filed in 2011 in Vermont, Jimmo v. Sebelius (Kathleen Sebelius was the United States Secretary for Health and Human Services between 2009-2014.) Jimmo and the other claimants pointed out that the Medicare rules do not set restoration of the patient’s condition as the only goal of rehab. Instead, the rules specifically list the preservation of current capabilities and the prevention of further deterioration as alternate goals if restoration isn’t possible.

Now, restoration is listed in the rules as the goal of rehab when the patient is trying to recover from a malformed body part. Unfortunately, that restoration goal came to be applied to most or all rehab programs, not just to malformed limbs. Using a “failure to restore” the patient’s function test allows payment to be cut off earlier in the rehab process than would using a “preservation of current function/prevention of deterioration” test. Cutting off rehab earlier saves Medicare and its insurance affiliates save a great deal of money when rehab gets shut down early. As a result, bit by bit, most or all rehab patients came to be measured by their progress toward restoration of function, and when the patient failed to improve toward that goal, payment for rehab get cut off.

The Jimmo lawsuit forced Medicare to face its failure to follow its own rules. The Jimmo lawsuit didn’t go to trial but, instead, led to a settlement agreement that Medicare would stop improper use of the “restoration” standard and its “failure to improve” test for ending rehab payments. (The restoration goal still applies to malformed body parts.) The judge approved the settlement as a court order.

Unfortunately, years later, rehab providers and Medicare’s insurers are still applying the failure to improve standard. The Jimmo case went back to court to demand that Medicare follow the settlement agreement. (Based on the resulting court order, it appears that the judge is not happy with Medicare.) Under the new court order that adds to the original settlement agreement, Medicare must undertake an effort to educate the public that the failure to improve test does not apply.

To patients undergoing rehab, the Jimmo case is the basis to argue that rehab should not be ended. The proposed ending of rehab must come in writing with an explanation of the right to appeal. The Jimmo settlement is an argument to present in the appeal.

Unfortunately, many hearing officers are more familiar with the incorrect approach that “failure to improve” is a reason to end rehab than they are familiar with the Jimmo agreement. Appeals about the continuation of rehab may require the help of an attorney who works in Medicare or Medicaid.

Also, the Jimmo settlement does not get rid of the 100-day limit on Medicare payments for rehab. The 100 days of available rehab does not reset unless the patient can go 60 days without needing Medicare’s support for the health issue that led to rehab. If the family is concerned about the patient going 60 days without needing more medical help, the family may not wish to push the Jimmo issue too far. The family may wish to “save” some of the 100 days.

In summary, if a patient seems to be getting pushed out of rehab early and the patient or family wishes rehab to continue, argue that Medicare can’t cut off rehab for a failure to improve. Use the name “Jimmo,” so the care provider, insurer, or hearing officer can look for the agreement.

Medicare, Rehab, and Observation Status

Posted on March 9, 2017 by Jim Koewler — No Comments ↓

Rehab is expensive. No surprise there. Under the right circumstances, the person getting rehab care sees little or no cost. Under the wrong circumstances, the person getting rehab will get stuck with the entire cost.

Just to be sure we all understand, “rehab” is rehabilitation. An example of rehab is the effort to strengthen the legs after a knee replacement.

In our discussion today, rehab follows a hospitalization. Most often, rehab takes place in a nursing home or in a facility similar to a nursing home that has chosen to focus on rehab services. (There is a trend to rehab at home, relieving the insurer from the room and board cost of a care facility.)

To have Medicare or an Advantage Plan cover rehab, the patient must be admitted to a hospital for a three-day period immediately before the start of rehab. If such a hospitalization took place and the patient has Medicare, then Medicare will usually pick up the entire bill for the first 20 days of rehab and all but $165 of the costs for any additional days (up to 100.) The patient or supplemental insurance picks up the $165. If the patient has an Advantage Plan, the plan’s rules will control how the costs of rehab will be handled. (Ed. Note: The $165 amount was inserted on 3/20/2017 after receiving new information.)

Separate from rehab, hospitals have economic pressures to control who gets “admitted” to the hospital. If a Medicare-covered person is re-admitted to the hospital within 30 days, Medicare will penalize the hospital for the first hospitalization for not treating the patient’s malady adequately enough the first time that another hospitalization was needed. The penalty will be a reduction in the Medicare reimbursement for the first hospital stay.

Because the risk of this payment reduction, hospitals tend not to “admit” someone on Medicare if the hospital’s staff isn’t sure that the patient can be cured. Many chronic illnesses of older adults can’t be cured. Perhaps they can be treated, or perhaps the symptoms can be controlled, but the illness may not be curable. The lack of a cure creates a stronger likelihood of the need for more hospital care for the same person for the same medical needs. This risk of more care creates a high risk of a “readmission” for the patient. So, the hospital has a reason to look for a way to avoid admitting someone with an uncurable chronic illness or with symptoms that can’t be completely diagnosed.

Hospitals have started to use “observation status.” Observation status takes place in the hospital in a hospital bed in a hospital room and looks just like an admission to the hospital, but it’s not an admission. A person on observation is “outpatient” for billing purposes. Medicare is billed via Part B rather than Part A. Advantage Plans are billed via outpatient billing codes. But, the patient doesn’t see a difference.

If a patient goes from observation status to rehab, the rehab will NOT be covered by Medicare. Rehab in a nursing home or rehab center can cost $10,000 per month. Unfortunately, someone on observation status may not know that rehab won’t be covered by Medicare or an Advantage Plan until it’s too late.

So, a person on Medicare or an Advantage Plan who is in the hospital (or the person’s loved ones) needs to advocate for full admission to the hospital. When the patient goes into a hospital room (i.e., not in the emergency room any more,) ask if the patient is admitted or on observation status. (Just using the terminology will get the staff’s attention.) If not admitted, demand to know why. Demand to know how to get fully admitted Demand to be fully admitted. Talk to the hospital social worker. Talk to the nurses. Talk to the doctors. Talk to the patient ombudsman. Talk to anyone necessary to get a full admission. (It may not happen, but if you don’t try, it definitely won’t happen.)

Check again everyday. (Status can change at any time.)

Being an advocate isn’t fun (for most people,) but it may be necessary.

“My Care Ohio” (People on both Medicare and Medicaid) Enrollment for 2017

Posted on November 3, 2016 by Jim Koewler — No Comments ↓

This week’s blog takes another break from the ongoing discussion of the 2016 changes to Ohio Medicaid’s rules. My Care Ohio enrollment for 2017 has started, so this installment will discuss strategies to reduce the adverse impacts that My Care Ohio could possibly cause to a person’s long term care.

Ohioans on both Medicare and Medicaid were first enrolled into My Care Ohio in May, June, and July 2014. These “dual eligible” (better described as “dual covered”) Ohioans were renewed around this time in 2015 and in 2016, and Ohioans who have become covered by both Medicare and Medicaid have been added to the program as they receive that dual coverage.

My Care Ohio is a system of “managed care” for people on both Medicare and Medicaid in Ohio. It is an attempt to control the state’s costs for long term care paid from the state budget.

When the implementation of My Care Ohio started in 2014, the February 22, 2014 installment tried to provide an overview on how the My Care Ohio program was supposed to work. The February 28, 2014 installment explained how My Care Ohio is an attempt to cut costs through insurance company command and control methods rather than empowering people to choose lower cost care by making it easier to qualify for in-home care Medicaid through PASSPORT or for the Assisted Living Waiver instead of maintaining the current financial incentive to choose a nursing home, with its higher cost per person The March 7, 2014 installment described the decisions that “dual eligibles” must make when My Care Ohio comes to their county: (1) whether to accept managed care for Medicare for this first year; (2) which Managed Care Organization to join; and (3) whether to accept managed care for Medicare for years two and three. The March 13, 2014 installment outlined what to choices to make when enrolling in My Care Ohio. When all of 2014’s enrollees were placed into the My Care Ohio program, the July 4, 2014 installment described how enrollees could minimize the likelihood that needed care services would be cut by opting out of Medicare participation in My Care Ohio. After a few months of experience with My Care Ohio, the December 5, 2014 installment described how the program was cutting off long term care benefits for some people.

Now that it’s time to make enrollment decisions for My Care Ohio for 2017, I want to revisit the strategies that dual-covered Ohioans should use.

My biggest fear for people in the My Care Ohio program is that their managed care organizations (i.e., the insurance companies to which they are assigned) will reduce services that the managed care organizations/insurance companies deem unnecessary as a way to cut costs. (We’ll call the managed care organizations/insurance companies the “MCOs.”) For example, if the person is in a nursing home and is doing well, the MCO might decide that the person can go home and receive home care (with a resulting big reduction in costs.) In fact, friends of mine who work in nursing homes have described a number of such discharges triggered by MCOs. Unfortunately, without the 24 hour care that a nursing home provides, these discharged seniors are at great risk to their health and well-being. Some of them will likely die.

The best protection against unwise cuts in services is the personal doctor. My fear is that a doctor could feel pressured by the MCO that pays the doctor’s fee to comply with an MCO decision. Because the doctor gets his or her payment from the MCO, the doctor may be hesitant to question or oppose the MCO’s decision to reduce services.

To avoid MCO influence over the doctor, I urge all people in the My Care Ohio program to:

– Opt out of the Medicare portion of My Care Ohio;
– Find out which MCO works best with the care providers (other than the doctor) that you would like to use and enroll with that MCO; and
-Choose a Medicare supplement (not an Advantage Plan) from an insurer that is not one of the MCOs in the My Care Ohio program.
– If you can’t get a supplement, then get the best Advantage Plan you can find.
– If the Advantage Plan is from an insurance company that serves as a My Care Ohio MCO in your area, choose a different insurance company as your MCO.

For example, a person in Summit County (where I live) can choose between United Health Care and CareSource as his/her MCO. Then the person would sign up for a Medicare supplement, preferably with a company other than United or CareSource. (Get the supplement enrollment done before December 7.) If the person can’t get a Medicare supplement (most likely because of health issues,) then the person should look for the Advantage Plan that fits best with his/her needs. (The person should look for coverage of the prescription drugs that the person uses and participation of the person’s doctor.)

If the person got a Medicare supplement or an Advantage Plan from a company other than United or CareSource, then the person should choose an MCO (United or CareSource) whose provider lists for the My Care Ohio program is best for the person’s situation. If the person DID get a Medicare supplement or Advantage Plan from United or CareSource, then the person should choose the other company as his/her MCO if at all possible.

Then, the person should tell Ohio Medicaid that he/she chooses to OPT OUT of Medicare’s participation in My Care Ohio.

After taking these steps, the person’s doctor is paid by someone other than the MCO and would be immune (as much as possible) to perceived pressure from the MCO to acquiesce to questionable care decisions.

Remember, in this fourth year of My Care Ohio, the program assumes that Medicare will be opted into My Care Ohio. You must take steps to notify the program that you choose to opt out for Medicare.

Medicare Annual Enrollment is here. Choose your insurance plan wisely.

Posted on October 20, 2016 by Jim Koewler — No Comments ↓

This week’s blog continues the break from the ongoing discussion of the changes to Ohio Medicaid’s Aged, Blind and Disabled (ABD) program. That series will resume soon.

Medicare’s “Open Enrollment” period has arrived for next year’s coverage. To have an insurance plan for the upcoming year to help cover the 20% of medical costs that Medicare will not cover, a Medicare-eligible person must enroll in the plan of his or her choice by December 7. (Open Enrollment is October 15 to December 7 each year.) The new policy will take effect on January 1.

People who have Medicare available to them have three basic options for medical insurance. So called “straight Medicare” provides the insured person with Medicare coverage for 80% of medical costs. The insured person is responsible for the other 20% as a co-pay. People who do not wish to pay the 20% co-pay can purchase either Advantage Plans or Medicare Supplements.An Advantage Plan is an insurance policy that pays most or all of the 20% of medical costs that Medicare does not cover. The amount of the insured’s new co-pay depends on the Advantage Plan that the insured chooses. Generally, the higher the premium, the lower the co-pay. There are plenty of other options that change the price and co-pay as well. (An Advantage Plan actually steps into the shoes of Medicare and pays the 80% in addition to whatever costs exceed the insured’s co-pay. The Advantage Plan insurance company receives both the premium of the individual insured person and a payment from the Medicare program in lieu of Medicare’s usual 80% payment towards the insured’s costs. The Advantage Program’s coverage of Medicare’s portion of costs is generally not noticed by the insured.) Because an Advantage Plan is a “replacement” for Medicare, it can have some limitations in covered services or in approved service providers as compared to “straight Medicare.” In addition, there are many different Advantage Plans, each offering slightly different coverage, from which to choose.

When an insured person has a Medicare Supplement (sometimes called a Medi-Gap policy,) the Medicare program pays its usual 80% pays the insured’s medical costs, and the Supplement pays the 20% not covered by the Medicare office. Medicare Supplements, because they supplement Medicare rather than replace Medicare, do not generally have any differences from Medicare in covered services or approved service providers. There are many different Supplements. The differences among Supplements generally is small, but worth examining.

Please be aware, it isn’t necessary to have Medicare additional insurance. Someone can choose “straight” Medicare in which he or she must cover the 20% Medicare co-pay by himself or herself. It costs nothing in a year during which that person has no medical issues. It can, though, without warning, cost lots of money if that person has an accident or needs an operation, for example. Each person on “straight” Medicare could pay 20% of $0 or 20% of $200,000, or 20% of any amount depending on what happens during that year. Before choosing traditional Medicare, you must decide whether you wish to assume the risk of a big surprise in health costs during the coming year.

The monthly premium for an Advantage Plan is generally much lower than the premium for a Medicare Supplements. (Some Advantage Plans have a $0 premium, in fact.) An Advantage Plan’s limitations on services and providers is the trade-off for a lower premium. The most glaring difference, though, between Advantage Plans on the one hand and both straight Medicare and Medicare Supplements on the other hand is the coverage of post-hospitalization rehabilitation services.

With straight Medicare and Medicare Supplements, an insured person who has been admitted to the hospital for three days and then needs post-hospitalization rehab can have 100 days of rehab coverage. Someone on an Advantage Plan may have rehab coverage end before 100 days have elapsed. An Advantage Plan (because it has rules slightly different than straight Medicare) can determine that rehab is not helping the insured person and can end coverage. Sometimes the rehab coverage is stopped as early as day 20. (Advantage Plans used to base their decisions on ending rehab payments on on day-to-day progress reports. Now, Advantage Plans must now look at week-to-week comparisons or even bi-weekly comparisons.) Still, rehab can be very expensive, so Advantage Plans have a strong incentive to end rehab coverage as early as possible.

(“Admission” to the hospital rather than “under observation” in the hospital is a very important distinction in the availability of any insurance coverage for rehab. That issue is not handled differently by Medicare, Advantage Plans, or Medicare Supplements, though. Consequently, the “admission” versus “observation status” issue is not important to today’s discussion. I mention it here as a side note because it is an important issue for all people insured through Medicare.)

Even though we are in an “open” enrollment period, someone covered by any form of Medicare cannot simply switch plans on demand. Medicare, unlike the Affordable Care Act, allows the insurance company to make underwriting decisions on individual plans. Trying to move to a plan that provides more coverage may require a medical examination and will certainly require answering medical questions. Generally, I urge people to move to a Medicare Supplement, if they can (as long as the premium isn’t prohibitive.)

If a Medicare Supplement is not available, an alternative is an Advantage Plan or even straight Medicare with a separate Hospital Indemnity policy. (The cost of an Advantage Plan plus Hospital Indemnity policy is usually less than a Medicare Supplement.) A Hospital Indemnity policy is subject to underwriting, though. Someone who exhibits symptoms that are a concern for the Hospital Indemnity insurance company may not be able to get such a policy.

Without considering the cost of premiums, my preferences for medical insurance is a Medicare Supplement. My second choice is an Advantage Plan with a Hospital Indemnity policy. My third choice is straight Medicare. Finally, my fourth choice is an Advantage Plan. (Because I provide legal services to people who need long term care or that have special needs, my clients have health concerns. That possibly causes my preference for the broad coverage that supplements provide.)

No matter your preference, seek out a Medicare insurance agent that represents more than one insurer. Don’t just assume that the person at the table in your local grocery, pharmacy, or department store can give you all the options. If the person at that table sells insurance for just one company, please consider whether you want to find more options before deciding.

But, don’t go it alone. Get help from an insurance broker. These insurance plans are complicated, and there are many different choices among Advantage Plans and among supplements. Let someone help you figure out your best options. Their help doesn’t cost you anything. They’re paid by the insurer you choose.

Choose your plan wisely.

Acknowledgement: Thanks to Michael Whitaker of Premier Solutions Group in Brookpark, Ohio for helping me understand Hospital Indemnity insurance.

“My Care Ohio” Enrollment for 2016

Posted on November 5, 2015 by Jim Koewler — No Comments ↓

My Care Ohio enrollment is back. Ohioans on both Medicare and Medicaid were first enrolled into My Care Ohio in May, June, and July 2014. These “dual eligible” (better described as “dual covered”) Ohioans were renewed around this time in 2015,and Ohioans who have become covered by both Medicare and Medicaid have been added to the program as they receive that dual coverage.

My Care Ohio is a system of “managed care” for people on both Medicare and Medicaid in the populous areas of Ohio. It is an attempt to control the state’s costs for long term care paid from the state budget.

When the implementation of My Care Ohio started in 2014, the February 22, 2014 blog post tried to provide an overview on how the My Care Ohio program was supposed to work. The February 28, 2014 blog post explained how My Care Ohio is an attempt to cut costs through insurance company command and control methods rather than empowering people to choose lower cost care by making it easier to qualify for in-home care Medicaid through PASSPORT or for the Assisted Living Waiver instead of maintaining the current financial incentive to choose a nursing home, with its higher cost per person The March 7, 2014 installment described the decisions that “dual eligibles” must make when My Care Ohio comes to their county: (1) whether to accept managed care for Medicare for this first year; (2) which Managed Care Organization to join; and (3) whether to accept managed care for Medicare for years two and three. The March 13, 2014 installment outlined what to choices to make when enrolling in My Care Ohio. When all of 2014’s enrollees were placed into the My Care Ohio program, the July 4, 2014 installment described how enrollees could minimize the likelihood that needed care services would be cut by opting out of Medicare participation in My Care Ohio.

Now that it’s time to make enrollment decisions for My Care Ohio for 2016, I want to revisit the strategies that dual-covered Ohioans should use.

My biggest fear for people in the My Care Ohio program is that their managed care organization (i.e., the insurance company to which they are assigned) will reduce services that the managed care organization/insurance company deems unnecessary as a way to cut costs. (We’ll call the managed care organization/insurance company the “MCO.”) For example, if the person is in a nursing home and is doing well, the MCO might decide that the person can go home and receive home care (with a resulting big reduction in costs.) In fact, friends of mine who work in nursing homes have described a number of such discharges triggered by MCOs. Unfortunately, without the 24 hour care that a nursing home provides, these discharged seniors are at great risk to their health and well-being. Some of them will likely die.

To avoid MCO influence over the doctor, I urge all people in the My Care Ohio program to:

– Opt out of the Medicare portion of My Care Ohio;
– Find out which MCO works best with the care providers (other than the doctor) that you would like to use and enroll with that MCO; and
-Choose a Medicare supplement (not an Advantage Plan) from an insurer that is not one of the MCOs in the My Care Ohio program.
– If you can’t get a supplement, then get the best Advantage Plan you can find, just make sure it’s not from a My Care Ohio MCO.

For example, a person who can choose between United Health Care and CareSource as their MCO (as in Summit County where I live) would look at these insurers’ provider lists for the care providers that they prefer. Then, the person would tell Ohio Medicaid that they choose to OPT OUT of Medicare’s participation in My Care Ohio. Then the person would sign up for a Medicare supplement with a company other than United or CareSource. (Get the supplement enrollment done before December 7.) After taking these steps, the person’s doctor is paid by someone other than the MCO and would be immune to perceived pressure from the MCO to acquiesce to questionable care decisions.

Remember, in this third year of My Care Ohio, the program assumes that Medicare will be opted into My Care Ohio. You must take steps to notify the program that you choose to opt out for Medicare.

Medicare Open Enrollment is here. Choose your insurance plan wisely.

Posted on October 15, 2015 by Jim Koewler — No Comments ↓

This week’s blog takes a break from the ongoing series about Legal Issues when someone has Dementia to discuss a topic that is important at this time of year.

Medicare’s “Open Enrollment” period has arrived for 2016 coverage. To have an insurance plan for 2016 to help cover the 20% of medical costs that Medicare will not cover, a Medicare-eligible person must enroll in the plan of his or her choice by December 7, 2015. (Open Enrollment is October 15 to December 7 each year.) The new policy will take effect on January 1.

An Advantage Plan is an insurance policy that pays most or all of the 20% of medical costs that Medicare does not cover. The amount of the insured’s new co-pay depends on the Advantage Plan that the insured chooses. Generally, the higher the premium, the lower the co-pay. There are plenty of other options that change the price and co-pay as well. (An Advantage Plan actually steps into the shoes of Medicare and pays the 80% in addition to whatever costs exceed the insured’s co-pay. The Advantage Plan insurance company receives both the premium of the individual insured person and a payment from the Medicare program in lieu of Medicare’s usual 80% payment towards the insured’s costs. The Advantage Program’s coverage of Medicare’s portion of costs is generally not noticed by the insured.) Because an Advantage Plan is a “replacement” for Medicare, it can have some limitations in covered services or in approved service providers as compared to “straight Medicare.” In addition, there are many different advantage plans, each offering slightly different coverage, from which to choose.

Choose your plan wisely.

Acknowledgement: Thanks to Michael Whitaker of Premier Solutions Group in Brookpark, Ohio for helping me understand Hospital Indemnity insurance.

Legal Issues when someone has Dementia – Seek out an Elder Law Attorney

Posted on September 24, 2015 by Jim Koewler — No Comments ↓

This week’s blog continues the discussion of Legal Issues when someone has Dementia. The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?” The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place. The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared. The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney. The June 4, 2015 installment discussed how to decide whether to prepare a Living Will. The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney. The June 18, 2015 installment discussed the importance of making the General Power of Attorney “durable.” The June 25, 2015 installment discussed the importance of NOT making the General Power of Attorney “springing.” The July 2, 2015 installment discussed revoking prior Powers of Attorney. The July 9, 2015 installment discussed Do Not Resuscitate orders. The July 16, 2015 installment discussed the Right of Disposition designation. The July 23, 2015 installment discussed the Will (or Last Will and Testament.) The July 31, 2015 installment discussed beneficiary designations on life insurance policies, IRAs, annuities, etc. The August 6, 2015 installment discussed whether to pre-plan a funeral. The August 14, 2015 installment discussed choosing a final resting place. The August 28, 2015 installment discussed pre-planning the funeral ceremony. The September 3, 2015 installment discussed when and how to pay for the pre-planned funeral. The September 10, 2015 installment discussed medical insurance choices. The September 17,2015 installment discussed long term care insurance. Today’s installment will discuss obtaining the services of an elder law attorney.

Today’s installment continues the discussion of issues to manage when someone finds out that he or she has a disease that causes dementia. These issues should be managed before the dementia gets worse, before the disease takes away the person’s ability to make decisions. Along with the issues previously discussed, someone who has dementia (or his or her family) should seek the help of an elder law attorney.

Someone who has a disease that causes dementia is very likely to need long term care in the future. The costs of that long term care can use up all of the person’s life savings. If the person has a spouse, the costs of care can use up the spouse’s savings as well. An elder law attorney may be able to shelter a portion of that savings.

In addition, an experienced elder law attorney can help identify other resources or services that can help the person with dementia and his or her family. These services may allow the person to stay in his or her home longer, for example. Alternatively, certain services may help family members in understanding the disease and its symptoms, making life easier for both the person with dementia and the family.

An elder law attorney can help with the important decisions that this blog has discussed over the last several weeks. The elder law attorney can be a guide through the labyrinth of uncertainty into which the dementia has thrust the person and family.

The sooner the person with dementia and his or her family start to work with an elder law attorney, the more good can come of it. A delay is seeking out an elder law attorney takes options and opportunities off the table.

Legal Issues when someone has Dementia – Think about Medical Insurance

Posted on September 5, 2015 by Jim Koewler — No Comments ↓

This week’s blog continues the discussion of Legal Issues when someone has Dementia. The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?” The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place. The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared. The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney. The June 4, 2015 installment discussed how to decide whether to prepare a Living Will. The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney. The June 18, 2015 installment discussed the importance of making the General Power of Attorney “durable.” The June 25, 2015 installment discussed the importance of NOT making the General Power of Attorney “springing.” The July 2, 2015 installment discussed revoking prior Powers of Attorney. The July 9, 2015 installment discussed Do Not Resuscitate orders. The July 16, 2015 installment discussed the Right of Disposition designation. The July 23, 2015 installment discussed the Will (or Last Will and Testament.) The July 31, 2015 installment discussed beneficiary designations on life insurance policies, IRAs, annuities, etc. The August 6, 2015 installment discussed whether to pre-plan a funeral. The August 14, 2015 installment discussed choosing a final resting place. The August 28, 2015 installment discussed pre-planning the funeral ceremony. The September 3, 2015 installment discussed when and how to pay for the pre-planned funeral. Today’s installment will discuss medical insurance choices.

Because the vast majority of people who have dementia related disease are seniors, this installment will focus on Medicare options. The people who have dementia related disease that are not yet old enough to qualify for Medicare have health insurance options very similar to those available to people with special needs discussed in the March 5, 2015 installment of this blog. (Someone who becomes disabled (from the dementia related disease or from some other cause) can get Medicare 25 months after the disability is recognized by the Social Security Administration. These people have the same Medicare options as seniors.)

People who do not wish to pay the 20% co-pay can purchase either Advantage Plans or Medicare Supplements.

When an insured person has a Medicare Supplement, the Medicare program pays its usual 80% pays the insured’s medical costs, and the Supplement pays the 20% not covered by the Medicare office. Medicare Supplements, because they supplement Medicare rather than replace Medicare, do not generally have any differences from Medicare in covered services or approved service providers. There are many different Supplements. The differences among Supplements generally is small, but worth examining.

Advantage Plan premiums usually cost about one-third of Medicare Supplements. (Some Advantage Plans have a $0 premium, in fact.) An Advantage Plan’s limitations on services and providers is the trade-off for a lower premium. The most glaring difference between Advantage Plans on the one hand and both straight Medicare and Medicare Supplements on the other hand is the coverage of post-hospitalization rehabilitation services.

With straight Medicare and Medicare Supplements, an insured person who has been admitted to the hospital for three days and then needs post-hospitalization rehab can have 100 days of rehab coverage. Someone on an Advantage Plan may have rehab coverage end before 100 days have elapsed. An Advantage Plan (because it has rules slightly different than straight Medicare) can determine that rehab is not helping the insured person and can end coverage. Sometimes the rehab coverage is stopped as early as day 20. Rehab can be very expensive, so Advantage Plans have a strong incentive to end rehab coverage as early as possible.

(“Admission” to the hospital rather than “under observation” in the hospital is a very important distinction in the availability of insurance coverage for rehab. That issue is not handled differently by Medicare, Advantage Plans, or Medicare Supplements, though. Consequently, the “admission” versus “observation status” issue is not important to today’s discussion. I mention it here as a side note because it is an important issue for all people insured through Medicare.)

Someone who has a dementia causing disease is likely to need much greater medical attention than before the dementia started. Accordingly, someone suffering from dementia (or his or her family) may want to change to an insurance plan with greater coverage than he or she had previously. (Open enrollment for such a switch falls between October 15 and December 7 each year, with the new policy taking effect on January 1 of the next year.)

Unfortunately, someone covered by any form of Medicare cannot switch plans on demand. (Medicare, unlike the Affordable Care Act, allows the insurance company to make underwriting decisions on individual plans.) Trying to move to a plan that provides more coverage may require a medical examination and will certainly require answering medical questions. If the dementia related disease has been identified by a doctor or is noticeable to an insurance company underwriter, a more generous plan may not be available. Accordingly, I urge anyone who believes that he or she is in the early stages of a dementia related disease to move to a plan with better coverage (if necessary) at the next open enrollment period. Generally, I urge people to move to a Medicare Supplement, if they can.

If a Medicare Supplement is not available, an alternative is an Advantage Plan or even straight Medicare with a separate Hospital Indemnity policy. (The cost of an Advantage Plan plus Hospital Indemnity policy is usually less than a Medicare Supplement.) A Hospital Indemnity policy is subject to underwriting, though. If someone with a dementia related disease waits too long, the Hospital Indemnity policy may not be available either.

Without considering the cost of premiums, my preferences for medical insurance for someone who has a dementia related illness is a Medicare Supplement. My second choice is an Advantage Plan with a Hospital Indemnity policy. My third choice is straight Medicare. Finally, my fourth choice is an Advantage Plan. I realize that my preference is for the most expensive insurance. When someone learns that he or she has dementia, I suggest that he or she abandon price sensitivity and try for the best coverage. (The insurance may not be available because of the dementia or some other pre-existing condition, but, with the disease likely only to get worse, trying to get the best insurance as soon as possible is a good idea.)

Most people on Medicare keep their existing insurance plans from year to year. Someone who believes that he or she has the early stage of a disease that causes dementia should take a hard look at his or her insurance choices at the next open enrollment period.

Acknowledgement: Thanks to Michael Whitaker of Premier Solutions Group in Brookpark, Ohio for helping me understand Hospital Indemnity insurance.

Special Legal Needs of People with Special Needs

Posted on February 19, 2015 by Jim Koewler — No Comments ↓

People with special needs (sometimes called disabilities) have legal needs (and related legal opportunities) that others do not have. One of the opportunities is the ABLE account (discussed in my blog post of February 5, 2015.) While the ABLE account is useful, if used in moderation, for easy money management without affecting government benefits, there are a number of other legal issues facing people with special needs.

Many of the legal issues facing people with special needs concern financial eligibility for government benefits. (Special Needs law is like Elder law in that way.) There are strategies for protecting the special needs person’s money while still maximizing government benefits. There are different strategies to allow family members to provide for the special needs person without impacting government benefits. These strategies form the backbone of the legal services for people with special needs.

In addition, to the strategies mentioned above regarding how to own assets that belong to or can benefit a person with special needs, legal issues can arise concerning income sources, housing, food, education, caregivers, management of assets and personal care. Frequently, these issues are tied together.

For example, a person with special needs may receive Supplemental Security Income, the Social Security program for people who haven’t worked long enough (and will never be able to work long enough) to qualify for Social Security Disability Income. Housing made available to the SSI recipient above the minimal level allowed can lead to a reduction in SSI benefits, however. Similarly, the value of the special needs persons’ assets may be too high for a parent to get the necessary bonding to act as guardian. In addition, legal needs may be different for someone who became disabled as an adult than they are for someone else who has been disabled since childhood or even since birth.

Special Needs Law isn’t like checkers. The “pieces” don’t all move the same way. Future installments will discuss some of these issues in more detail.

“My Care Ohio” could cut off your Long Term Care Benefits

Posted on December 4, 2014 by Jim Koewler — No Comments ↓

My Care Ohio is cutting off Medicaid payments for some seniors who need long term care. Without payment, the providers can’t afford to provide long term care.

The insurance companies that “manage” care for Ohioans who are covered by both Medicare and Medicaid have started to identify people who, in the opinion of employees of the insurance company employees, are not eligible for Medicaid and then have cut off Medicaid payments for those people. To be blunt, this seems very much like the “death panels” that Republicans claimed would result from the never-adopted Clinton health plan.

For those who have not followed the My Care Ohio discussion from its start earlier this year, My Care Ohio is a system of “managed care” for people on both Medicare and Medicaid (called “dual eligible” but more accurately described as “dual covered”) in the populous areas of Ohio. It is an attempt to control the state’s costs for long term care paid from the state budget.

When the implementation of My Care Ohio started earlier this year, I tried to provide an overview on how the My Care Ohio program will work (Managed care for Ohio Medicare/Medicaid “Dual Eligibles”) on February 22, 2014. On February 28, 2014, I explained how My Care Ohio is an attempt to cut costs through insurance company command and control methods rather than empowering people to choose lower cost care by making it easier to qualify for in-home care Medicaid through PASSPORT or for the Assisted Living Waiver instead of maintaining the current financial incentive to choose a nursing home, with its higher cost per person (My Care Ohio: A Triumph of the Stick over the Carrot.) On March 7, 2014, I described the decisions that dual eligibles must make when My Care Ohio comes to their county: (1) whether to accept managed care for Medicare for this first year; (2) which Managed Care Organization to join; and (3) whether to accept managed care for Medicare for years two and three. (Your Options in “My Care Ohio,” managed care for Medicare/Medicaid “Dual Eligibles”) On March 13, 2014, I outlined what to choices to make when enrolling in My Care Ohio. (What to choose in “My Care Ohio,” managed care for Medicare/Medicaid “Dual Eligibles”.)

When all of 2014’s enrollees were placed into the My Care Ohio program, I described how enrollees could minimize the likelihood that needed care services would be cut by opting out of Medicare participation in My Care Ohio (Keep your doctor separate from your Managed Care Organization in the “My Care Ohio” program) in my July 4, 2014 post. On November 13, 2014, I reiterated my suggestions about My Care Ohio enrollment with the opening of the renewal period for next year. (“My Care Ohio” Enrollment for 2015)

As it happens, just as we muddle through the 2015 enrollment period, we also get feedback from long term care service providers about the treatment of their clients/patients at the hands of the My Care Ohio insurance companies. That feedback is not good news for Ohio’s dual-covered seniors. The insurers are looking for people whom they can cut off from coverage using the opinions of insurance company doctors to justify their decisions.

These people would not have been covered by Medicaid in the first place if their own doctor had not determined that long term care was necessary. So, for these people under insurance company scrutiny, we have a repeated difference of opinions between doctors. It seems, however, that only the opinion of the insurance company doctor matters.

My biggest fear for people in the My Care Ohio program is that their managed care organization (i.e., the insurance company to which they are assigned, whom we will call an “MCO”) will reduce services (in order to cut costs) that the managed care organization/insurance company deems unnecessary. For example, if the person is in a nursing home and is doing well, the MCO might decide that the person can go home and receive home care (with a resulting big reduction in costs.) Sadly, my biggest fear seems to have come to pass.

These MCOs are quick to tell the people whom they de-fund that the insurance company hasn’t cut off their long term care. If the long term care stops, that’s the decision of the care provider (nursing home, assisted living facility, or home-care provider, etc.) That, however, is a disingenuous story. The real story should be that the insurer is cutting off payments to the provider and the provider is not in a position to provide long term care for free.

Now, this process is not the insurers’/MCOs’ fault (not all their fault anyway.) This is a state of Ohio decision to cut costs by cutting off care. An MCO’s job is to be the actual “hatchet man.”

So, if you or a loved one is dual covered (both Medicaid and Medicare) in Ohio, protect against service cuts. The best protection against unwise cuts in services is keeping your personal doctor and keeping your doctor away from undue influence by the MCO. To avoid MCO influence over the doctor, I urge all people in the My Care Ohio program to:

Opt out of the Medicare portion of My Care Ohio;
Find out which MCO works best with the care providers (other than the doctor) that you would like to use and enroll with that MCO; and
Choose a Medicare supplement (not an Advantage Plan) from an insurer that is not one of the MCOs in the My Care Ohio program.
If you can’t get a supplement, then get the best Advantage Plan you can find, just make sure it’s not from a My Care Ohio MCO.

Remember, in this second year of My Care Ohio, the program assumes that Medicare will be opted into My Care Ohio. You must take steps to notify the program that you choose to opt out for Medicare.

For more information, visit Jim’s website.

Jim Koewler’s mission is
“Protecting Seniors and People with Special Needs.”

For help with long term care or with planning for someone with special needs,
call Jim, or contact him through his website.