Posts filed under 'Health Care Legislation'
April 28th, 2011
State experimentation to cut expenditures on Medicaid continues: Florida is planning to funnel almost all of its Medicaid recipients into for-profit H.M.O. networks that will manage long term care of the elderly. This decision indicates a shift from caring for many of the elderly in nursing homes to expanding home care, which is currently very limited in Florida.
While pending legislation in Florida might succeed in curtailing the Medicaid budget, it seems clear that patient care will suffer. As for-profit insurance companies seek to maximize their profits, reimbursement rates to providers will be under pressure, doctors will opt out of networks, and patient care and benefits will be restricted.
At Lamson & Cutner, we recognize that the Federal and State governments are going to be trying out different tactics to reduce Medicaid costs. While it may be important for budgetary reasons to do so, we believe that patient care must remain the first priority, and that there are available solutions for government to reduce costs that do not imply reductions in care.
The current “attacks” on the Medicaid system make it all the more important for patients and their families to seek competent legal advice. If you need help with Elder Law issues, please feel free to contact our firm.
April 4th, 2011
Two of the New York Medicaid Redesign Team’s proposals that were most damaging to the elderly and their spouses, and to the parents of disabled children, were not included in the final budget approved by the Legislature on March 30, 2011.
We can all breathe a sigh of relief that New York is not going to impose a “look back” period for gifts and transfers for Community Medicaid or Medicaid Home Care, which would have caused devastating penalties. In addition, spousal refusal and parental refusal for community based Medicaid will not be eliminated. Both of these proposals are discussed in an earlier post on this Blog.
At the same time, however, the Legislature enacted an amendment to the definition of an individual’s “estate” for Medicaid purposes, with the obvious purpose of expanding Medicaid’s ability to recover greater amounts from the estates of Medicaid recipients. The expanded definition now includes retained life estates, jointly held property, and interests in trusts.
We believe that the expanded definition is problematical in a number of respects, and will likely lead to litigation. Unfortunately, it may be some time before we have clarity from the courts regarding the reach of these definitional changes.
In the meanwhile, it may be important to have your estate plan reviewed by an Elder Law attorney.
March 5th, 2011
New York’s newly created Medicaid Redesign Team (“MRT”) are proposing dramatic changes in our Medicaid program. While it is early in the process, and the proposals may not be implemented in their present form or at all, budgeting pressures at all levels of government make it likely that some changes in the Medicaid program will occur. Here are a couple of the particularly troubling features of the MRT’s proposals:
Elimination of Spousal/Parental Refusal.Currently, a spouse or other legally responsible relative may refuse to provide, or contribute to, the support of an applicant for Community Medicaid or Medicaid Home Care. When this occurs, Medicaid is obligated to provide care or services to the applicant if he is individually eligible, even if the spouse or other relative could afford to pay. The MRT is proposing that the resources and income of the spouse or other legally responsible relative should be counted in determining whether the applicant is eligible for Medicaid. This means that spouses, and parents of disabled children, will be required to spend down virtually all of the household’s assets, and contribute a share of their income, before their ill spouse or disabled child will be eligible to receive care.
Implementation of the 5-year “Look Back” for Community Medicaid and Home Care. Currently, the 5-year look back and transfer penalties apply only to applicants for Medicaid Nursing Home Care. This means that applicants for Community Medicaid or Home Care are currently free to transfer their assets to family members, friends, or trusts, and thereby become eligible for Medicaid benefits. The MRT’s proposal would extend the 5-year look back to Community Medicaid and Home Care, which means that many potential applicants will find that they are ineligible for Medicaid, or subject to a lengthy penalty period before benefits can be obtained.
Impact of these proposals. If the above proposals become law, many Medicaid applicants and their families will be severely affected. Some will find their financial situation and lifestyle significantly diminished, and others may find it difficult to pay for even basic living expenses. People, including disabled children, who could otherwise have been cared for at home may find that institutional care is the only viable option once the family’s resources have been exhausted.
What to do? Now, more than ever, people who need, or may need, long-term care should make it a top priority to consult an Elder Law attorney. Planning steps may need to be taken earlier than previously seemed advisable. It will still be possible to improve your situation, even if these draconian new measures find their way into law.
April 22nd, 2010
The Family Health Care Decisions Act, signed into law by Governor Paterson in March of 2010, establishes the right of family members and others close to an incapacitated patient to make health care decisions on that patient’s behalf when he or she is no longer able to do so.
Prior to the enactment of this Act, no one, not even a spouse or a child, could speak on behalf of an incapacitated person if he or she had not signed a health care proxy or left clear and convincing evidence regarding his or her health care wishes before becoming incapacitated. This led to situations where patients were denied the palliative care they would have wanted, or were subjected to invasive treatments they would have refused.
With the passing of this law, any incapacitated patient who has neglected to sign a Health Care Proxy will nevertheless benefit from having a surrogate make health care decisions on his or her behalf. Now, once a finding of incapacity has been determined by the patient’s physician, a surrogate must be informed. According to a priority list of individuals (in order of priority: court-ordered guardian; spouse or domestic partner; adult child; parent; adult sibling; and close friend), a surrogate will be chosen to make any and all health care decisions for the incapacitated patient, including withdrawing or withholding life-sustaining treatment, in accordance with procedures and safeguards established in the new law.
While this new law helps individuals and families during difficult times, the Act does not do away with the need for a Health Care Proxy or diminish the importance of engaging in meaningful conversations with your loved ones regarding your wishes. First, because this legislation is so new, we have yet to see how the law will be applied and implemented in a given situation. Second, your surrogate will be chosen based on who is highest on the promulgated priority list, and may not be the person who knows your wishes or the one you would have chosen to speak on your behalf. Also, if there are multiple people at the same level of priority with differing opinions, objections can be made to the surrogate’s decisions, which could lead to conflicts. This can all be avoided if you select an agent, and speak to your agent about your medical wishes.
By signing a Health Care Proxy when you are well, you can choose the person who you want to make medical decisions on your behalf should you become incapacitated. You can choose the person you believe will carry out your wishes, and you’ll avoid a potential familial dispute down the road.
November 16th, 2009
Some of our clients are asking what the new Health Care legislation says, and how they will be affected. These are difficult questions to answer.
The Health Care bill passed by the House of Representatives a week ago is 1,990 pages long. The House bill will have to be reconciled with a separate bill that is being considered by the Senate. Trying to read and understand such lengthy and complex legislation would severely test the abilities and patience of the most diligent person.
According to Speaker Nancy Pelosi, D-California, the House bill “covers 96 percent of all Americans, and it puts affordable coverage in reach for millions of uninsured and under insured families, lowering health care costs for all of us.”
House Republican leader, Rep. John Boehner, R-Ohio, says that “It will raise the cost of Americans’ health insurance premiums; it will kill jobs with tax hikes and new mandates, and it will cut seniors’ Medicare benefits.”
According to budget estimates, the House bill would result in new health care spending of more than $1 trillion over the next 10 years. Funding of the increased costs would come from a variety of sources, including a 5.4% tax surcharge on high income earners, and more than $400 billion in cost cuts from Medicare. At the same time, the bill envisions increased
spending on Medicaid, and an easing of the eligibility requirements for that program.
Whether the House and the Senate will agree on a bill that is acceptable to the President, and what that bill might mean for each of us, all remains to be seen.
