September 28

Three Florida Elder Law Attorneys Publish Handook Warning of Unlicensed Practice of Law in Medicaid Planning

Many people who are not licensed attorneys promote themselves as “Medicaid Planners.”  A number of states have determined that non-lawyers who apply the law to a Medicaid applicant’s specific circumstances are engaging in the unlicensed practice of law (UPL).  Florida has been at the forefront of efforts to push back against UPL in this area.

Now, three Florida elder law attorneys have written a handbook aimed at educating nursing home and assisted living facility managers and staff in that state about the UPL as it pertains to Medicaid planning.  In writing the 142-page “Protecting Nursing Homes and Their Residents from the Unlicensed Practice of Law,” attorney Leonard E. Mondschein, and two Florida colleagues, John R. Frazier and Twyla L. Sketchley, hope to protect Florida facility administrators and staff from engaging in or unintentionally supporting the UPL.

“[The handbook] acts as both a marketing piece for nursing homes and ALF's as well as to give to prospective clients,” Mondschein said.  “Every state should have one so that the elder law attorneys in that state can use it to make their case on why a family should use an attorney for Medicaid Planning and why a nursing home should only refer to an attorney.”

Mondschein said that the Florida book can serve as a model for practitioners in other states.  “Since no one has ever done this before and with the rise of UPL in the Medicaid and VA Planning areas, the reader from another state can copy the basic format of the book and by researching his own state laws and bar rules, write a state-specific book as we did,” he said.  “It’s a new tool in the toolbox to fight UPL by educating the public, SNF, ALF facilities.”

The book explains to facility managers and staff:

  • what UPL is and how it happens;
  • how to protect, prevent and deter nursing home and assisted living facility residents from becoming victims;
  • how to protect themselves and their facility from becoming an unwitting participant in UPL activities; and
  • important actions they can take to fight UPL if they see it happening.

The handbook includes chapters on the possible legal consequences of negligent referral, examples of problems caused by non-lawyer Medicaid planners, trouble the nursing home can get in if nursing home employees know that a non-lawyer Medicaid planner is engaging in UPL, and possible consequences if a nursing home employee is paid a fee to refer Medicaid cases to a non-lawyer Medicaid planner.

The book also offers “Eight reasons to use an elder law attorney (and NOT a nonlawyer) to assist in qualifying a person for Medicaid benefits.”

To download the digital version of the handbook, go to www.miamieldercarelawyers.com and click the first download under “Free Books.”

March 12

The Financial Burden of Health Care Spending: Larger for Medicare Households than for Non-Medicare Households

By Juliette Cubanski, Kendal Orgera, Anthony Damico, and Tricia Neuman via KFF.ORG

Medicare offers health and financial protection to nearly 60 million adults ages 65 and over and younger people with disabilities. However, the high cost of premiums, cost-sharing requirements, and gaps in the Medicare benefit package, combined with relatively low incomes among the Medicare population, can result in beneficiaries devoting a substantial share of their total household spending to health care costs.

This analysis compares health-related expenses as a share of total household spending for Medicare and non-Medicare households, using the 2016 Consumer Expenditure Survey (CE). We estimate how much Medicare and non-Medicare households spent on health care, including premiums, compared to other household spending (e.g., housing, transportation, and food). We also show how health expenses as a share of Medicare household spending varies by age (based on the oldest household member) and poverty level, and changes over time. Because the CE is a survey of the non-institutional population, it excludes out-of-pocket spending on nursing homes and other long-term care facilities, which is a significant share of average out-of-pocket costs for people with Medicare; thus this analysis understates the spending burden for households that incur long-term care facility costs, which may fall disproportionately on Medicare households.

Key Findings

Health expenses accounted for 14 percent of Medicare household spending in 2016, on average—more than double that of non-Medicare households (6%). The higher financial burden for Medicare households is attributable both to lower average total household spending than non-Medicare households ($37,962 vs. $58,810) and higher average health care spending ($5,355 vs. $3,809).

Spending on health expenses as a share of Medicare household spending increased with age (based on the oldest household member), as health care needs increase and spending on other items declines.

Middle-income Medicare households devoted a greater share of their household spending to health-related expenses than either the lowest- or highest-income Medicare households in 2016.

Among Medicare households with incomes below 100 percent of poverty, those with all household members also covered by Medicaid spent a considerably smaller share of household expenditures on health care in 2016 than those where no members were covered by Medicaid (4% vs. 17%, respectively).

Nearly 3 in 10 Medicare households spent 20 percent or more of their household spending on health-related expenses in 2016, while only 6 percent of non-Medicare households did so.

Findings

Health expenses accounted for 14 percent of Medicare household spending in 2016, on average—more than double the share of health spending by non-Medicare households (6%).

Spending on health care—for health insurance premiums, medical services and supplies, and prescription drugs—was a larger component of household spending for Medicare households than non-Medicare households in 2016 (14 percent versus 6 percent, respectively). On average, Medicare households devoted roughly similar shares of their total household spending to food, housing, and transportation in 2016 as did non-Medicare households, but a substantially larger share to health care expenses, and a smaller share to other expenses including education, entertainment, and apparel. Spending on health care overall has accounted for roughly the same share of Medicare household spending over time.

The higher financial burden associated with health-related expenses for Medicare households is attributable both to their lower average total household spending than non-Medicare households ($37,962 and $58,810, respectively) and their higher average health care spending ($5,355 and $3,809, respectively).

Health spending as a share of average Medicare household spending increased with age in 2016, as health needs increase and spending on other items declines.

Spending on health care as a share of total Medicare household spending varies by the age of the oldest household member. In 2016, households where the oldest member was age 75 or older spent a larger share of their total household spending on health care than households where the oldest member was age 65 to 74, on average. This is related to the fact that health spending tends to increase with age as health care needs rise, while spending on non-health items and overall financial resources tend to decrease. Average health care spending comprised 16 percent of total household spending for households in which the oldest member was age 75 or older, compared to an average of 13 percent for households where the oldest member was age 65 to 74.

Spending on health-related expenses represented a smaller share of total household spending (10%, on average) for people under age 65 who qualify for Medicare due to having a permanent disability than for older beneficiaries, with lower spending on all types of health-related expenses. Lower spending by younger Medicare households on all types of health-related expenses is likely related to the fact that the rate of Medicaid coverage is higher among younger people with disabilities on Medicare than among those ages 65 and older; in 2013, 46 percent of non-institutionalized Medicare beneficiaries under age 65 also had Medicaid coverage, compared to 12 percent of non-institutionalized beneficiaries ages 65 and older (based on analysis of the 2013 Medicare Current Beneficiary Survey). For people with low incomes and few assets, Medicaid helps pay the cost of Medicare premiums and cost-sharing requirements.

Medicare households with modest incomes spent a greater share of their total household spending on health-related expenses than either the lowest- or highest-income Medicare households in 2016.

Near-poor and middle-income Medicare households faced a greater health care spending burden in 2016 than the lowest- and highest-income Medicare households. For those with incomes between 100 percent and 399 percent of the federal poverty level (FPL), average health care spending as a share of household spending was 15 percent, compared to 12 percent for Medicare households with incomes above 400 percent of the FPL and 13 percent for Medicare households with incomes below 100 percent of the FPL ($11,511/individual and $14,507/couple ages 65 and over in 2016).

While the highest-income Medicare households (400 percent of the FPL or more) devoted a smaller share of their total household spending to health-related expenses than near-poor and middle-income households, their annual spending on health care in dollars was significantly higher ($8,247 on average, compared to $2,614, $4,126, $6,522, and $6,603 for those with incomes of less than 100 percent, 100-199 percent, 200-299 percent, and 300-399 percent of the FPL, respectively).

Medicaid substantially reduces health-related expenses in low-income Medicare households where beneficiaries are eligible for both Medicare and Medicaid, but not all of those with low incomes are covered by Medicaid.

The relatively low share of average total household spending on health care among Medicare households with incomes below 100 percent of the FPL ($11,511/individual and $14,507/couple ages 65 and over in 2016) can be partly attributed to the financial protections provided by Medicaid coverage. Yet not all low-income Medicare beneficiaries are covered by Medicaid, which may be due to asset levels, a challenging eligibility and enrollment process, or lack of awareness about eligibility. This leaves many low-income households exposed to considerable health care costs. Among Medicare households with incomes below 100 percent of the FPL, those with all household members also covered by Medicaid spent a considerably smaller share of household expenditures on health care in 2016 than those where no members were covered by Medicaid (4 percent versus 17 percent, respectively).

Annual dollar spending on health care by Medicare households below 100 percent of the FPL differed even more substantially than the share of household spending depending on whether or not all household members had Medicaid coverage. Average health care spending in 2016 by Medicare households below poverty with no members covered by Medicaid was nearly ten times that of the health spending by Medicare households below poverty with all members covered by Medicaid ($4,473 vs. $467, respectively).

Nearly 3 in 10 Medicare households spent 20 percent or more of their total household spending on health-related expenses in 2016, while only 6 percent of non-Medicare households did so.

Given the higher average spending on health-related expenses by Medicare households than non-Medicare households, it follows that a larger share of Medicare households spent 20 percent or more of their total household spending on health care. Nearly five times as many Medicare households as non-Medicare households devoted 20 percent or more of their total household spending to health-related expenses in 2016 (29% vs. 6%, respectively). The share of Medicare households with health care spending at this level increased by age, with 4 in 10 households with the oldest member age 85 or older devoting at least 20 percent of their total household spending to health-related expenses, compared to one-fourth (25%) of households with the oldest member age 65 to 74.

Some Medicare households incurred an even greater health care spending burden relative to their total household spending: just over 1 in 10 Medicare households (12%) spent 30 percent or more of their total household spending on health-related expenses, while 4 percent of Medicare households spent 40 percent or more on health care.

Conclusion

Medicare households spent 14 percent of their total household expenses on health-related expenses in 2016, on average—more than twice than the share among non-Medicare households. The financial burden of out-of-pocket health spending fell disproportionately on older households and those with modest incomes. Low-income Medicare households with no members who are also covered by Medicaid faced a higher health spending burden than low-income households where all members also have Medicaid coverage.

The higher financial burden associated with health-related expenses for Medicare households is attributable both to their lower average total household spending than non-Medicare households ($37,962 and $58,810, respectively) and their higher average health care spending ($5,355 and $3,809, respectively). Even if non-Medicare households spent the same amount on health expenses that Medicare households did, the spending burden would still be higher for Medicare households due to their lower average total household budget. These findings highlight the importance of monitoring health care affordability among Medicare beneficiaries—a majority of whom already live on tight budgets.

Methodology

This analysis uses data from the Bureau of Labor Statistics 2016 Consumer Expenditure Survey (CE). The CE provides data on expenditures, income, and demographic characteristics of consumers in the United States. The CE is a survey of households (“consumer units”), excluding people residing in institutions such as long-term care facilities. A consumer unit consists of any of the following: (1) all members of a particular household who are related by blood, marriage, adoption, or other legal arrangements; (2) a person living alone or sharing a household with others or living as a roomer in a private home or lodging house or in permanent living quarters in a hotel or motel, but who is financially independent; or (3) two or more persons living together who use their incomes to make joint expenditure decisions. Financial independence is determined by spending behavior with regard to the three major expense categories: housing, food, and other living expenses.

The estimates presented in this analysis are averages for demographic groups of consumer units, not per capita estimates, and thus are not comparable to estimates based on other surveys that report per capita estimates, such as out-of-pocket health care spending reported in the Medicare Current Beneficiary Survey. Expenditures by individuals would differ from the average even if the characteristics of the group are similar to those of the individual. Another source of differences between averages reported here and elsewhere is that the spending data are based on survey self-reports and therefore are subject to nonsampling error, including the inability or unwillingness of respondents to provide accurate data.

March 8

Bad Social Security advice cost recipients $131 million, report finds

By Lori Konish via CNBC.com

A recent report estimates that 9,224 widow and widower beneficiaries age 70 and above were underpaid approximately $131.8 million after getting misled by bad advice.

Be on the lookout for erroneous Social Security advice that could cost you.

Making a decision as to when to start claiming Social Security benefits can be fraught with risks.

And there’s one more danger many retirees may not be aware of: getting botched advice from the Social Security Administration.

A recent report from the agency’s Office of the Inspector General estimates that 9,224 widow and widower beneficiaries age 70 and above were underpaid approximately $131.8 million.

The report also projects that Social Security will underpay 1,899 beneficiaries by about $9.8 million annually when they turn 70.

Those estimates are based on a random sample of 50 beneficiaries that led the office to conclude that 11,123 recipients could be eligible for a larger monthly benefit.

The research found that claimants were not informed that they had the ability to take widow or widower’s benefits while delaying their own retirement benefits, which would allow those checks to increase.

“We did not find any evidence SSA had informed claimants of the option to delay their retirement application when they applied for benefits, as required,” the inspector general’s report states.

“We also found that SSA did not have controls in place to alert its employees when they should inform widow[er]s of their option to delay their applications for retirement benefits.”

The Social Security Administration said it is committed to improving its procedures in a written response to the report.

“We are currently developing our action plan that responds to the recommendations,” a Social Security Administration spokeswoman said.

Those who feel they could have been affected should bring it up with the Social Security Administration, said John Piershale, wealth advisor at Piershale Financial in Crystal Lake, Illinois.

“If you feel like something has gone wrong, when you’re dealing with people in business, it’s always best to check to see if there’s any recourse than to not do anything at all,” Piershale said.

Unfortunately, receiving the wrong advice on Social Security claiming strategies is common, according to Joe Elsasser, president of Covisum, a provider of Social Security Timing software.

That goes particularly for divorced widows, according to Elsasser, who may not know that their ex-spouse has died or that they are eligible to claim benefits on their ex’s work record.

“We see that sort of situation a lot, where a divorced spouse doesn’t have any idea what is available or what could be available based on their ex’s record,” Elsasser said.

Getting answers to those questions may depend on how you word them.

“If I call Social Security and ask about my ex’s benefit record, they’re not allowed to tell me much,” Elsasser said.

But if those questions are worded as to what happens to your benefits if you claim on your ex’s record, the agency will be more forthcoming, he said.

Former spouses must meet certain requirements in order to claim on an ex’s record. That includes being at least 62 years old, having been married at least 10 years and being currently unmarried.

All prospective beneficiaries should pay close attention to changing Social Security rules. That is because Congress eliminated certain claiming strategies as of 2016. Based on your birth date and year, you may be grandfathered in to those old rules.

“If you’re between 64 and 66 right now, you need to explore whether or not you have access to a restricted application,” Elsasser said. “That’s a big thing for that age group.”

A restricted application would allow you to claim a spousal benefit if you are married or divorced, while allowing your own retirement benefits to grow until you reach age 70. But this only applies if you were born on or before Jan. 1, 1954.

If you are eligible for a restricted claim, but file for your own benefit instead, you forfeit your right to that strategy.

“That’s where a lot of people leave money on the table,” Elsasser said.

If you file for benefits, you have up to 12 months to change your mind.

Reversing a decision can be a complicated process that sometimes requires the beneficiary to write a check to Social Security.

“Even though it’s uncomfortable, it can be very worth it,” Elsasser said. For example, one of his clients had to write a $19,000 check to the agency, but ultimately gained more than $100,000 in lifetime benefits by pursuing another strategy.

The Social Security Timing tool, which is largely used by financial advisors and companies, is also available to individuals. But Elsasser warns that using such a tool without considering your full financial plan could sway the results.

Erin Gibbons, a senior financial advisor at United Asset Strategies who specializes in Social Security advice, agreed.

“If you do not have an expert on your side, it is very difficult” to get accurate information to make the appropriate decision, Gibbons said.

The right financial professional can also help when it comes to trying to undo Social Security claiming decisions after that 12-month period, particularly when the decision was made based on incorrect information, he said.

“Anything beyond 12 months is a battle,” Gibbons said. “It’s a battle we’re happy to take.”

March 8

In Battle Over Future of Veterans’ Care, Moderation Wins, for Now

By NICHOLAS FANDOS and DAVE PHILIPPS via The New York Times

WASHINGTON — In an administration rife with intramural fights, the battle over the Department of Veterans Affairs has stood out, not only for its vitriol but also for its consequences. At stake is the future of the nation’s veterans health care system.

For now at least, it appears moderation has prevailed, with the Veterans Affairs secretary, David J. Shulkin, thwarting a pitched conservative push to drive him out.

“It’s my job as secretary to get the organization singly focused on making the V.A. work better for vets,” the secretary, a physician and holdover from the Obama administration, said in an interview on Monday, after the latest in a string of meetings with the White House chief of staff. “I’ve been making it clear to the organization that we will not be distracted as we have in the last couple weeks.”

“People need to get on board with that or need to leave,” he added.

For weeks now, Dr. Shulkin, a political moderate who was confirmed by the Senate 100 to 0, has been locked in a bitter and unusually public battle with a band of Trump administration officials who he said were out to overthrow him. The plotters included White House officials and the two men charged with safeguarding the secretary’s public image — who instead worked to undercut it, according to loyalists of the secretary.

Offstage lurked Concerned Veterans for America, part of the constellation of political groups funded by the billionaire libertarian-leaning activists Charles G. Koch and David H. Koch, in this case to push the department away from government-run veterans’ care and toward private care subsidized by the government.

Dr. Shulkin forced the fight into the open, running a one-man media operation via his own cellphone while betting that the White House would eventually offer reinforcements. On Monday, after meeting with the White House chief of staff, John F. Kelly, Dr. Shulkin signaled that his gamble had paid off.

He said in an interview that President Trump and Mr. Kelly supported his making changes at the department, including the removal of any staff members who did not support him. Mr. Kelly made no mention of finding a new secretary, Dr. Shulkin said, and the White House press secretary, Sarah Huckabee Sanders, publicly expressed her support.

Staff changes could be announced on Wednesday, Dr. Shulkin said, without providing details. Whether he can prevail in actually firing the officials — rather than just having them transferred elsewhere in the government — remains to be seen. Political appointees serve at the pleasure of the president, and it was not clear whether Mr. Kelly or Mr. Trump would back their ouster.

At the root of the dispute is a long-running battle over how to deliver health care to the nation’s veterans. The department, the federal government’s second largest, operates more than 1,200 hospitals and clinics across the country where about nine million veterans receive treatment at little or no cost. In limited cases, it pays for veterans to see private doctors.

Policymakers in both parties argue that offering veterans unrestricted choice between the public veterans health care system and private medical providers would be too expensive and lead to the dismantling of the Veterans Affairs system. They have generally favored a more measured approach that would allow the department to approve the use of private care when waiting times are too long at veterans’ hospitals or when veterans live too far from the department’s facilities.

Enter the Trump administration: Mr. Trump has promoted greater choice as a top priority and surrounded himself with several conservative advisers supportive of greater privatization. Darin Selnick, a former senior adviser to the Koch-funded group, serves as the veterans affairs adviser for the White House’s Domestic Policy Council.

Dr. Shulkin, who led the department’s health care system under President Barack Obama, has aligned himself with the more moderate position. As more conservative officials see it, that has put him out of line with the White House view on the department’s most pressing policy issue.

In addition to the two top communicators — Curt Cashour, Dr. Shulkin’s press secretary, and John Ullyot, the assistant secretary responsible for communications — Dr. Shulkin is likely to target several officials close to the White House. They are Jake Leinenkugel, the White House senior adviser on veterans affairs, and Camilo Sandoval, a former data manager for the Trump campaign who was given a political post at the department.

Mr. Leinenkugel, a former brewery executive, wrote an email to Mr. Sandoval in December outlining his falling out with Dr. Shulkin over policy issues. Mr. Leinenkugel proposed using a then-continuing inspector general investigation to oust Dr. Shulkin’s chief of staff; replacing the deputy secretary, Thomas G. Bowman, with Mr. Leinenkugel; and replacing Dr. Shulkin with a “strong political candidate” with ties to the Koch-based group.

The dispute boiled over last month when the department’s inspector general released a scathing report on a business trip that Dr. Shulkin took to Britain and Denmark last year. The report found “serious derelictions” related to the trip and concluded that the secretary spent much of it sightseeing and improperly accepted a gift of Wimbledon tickets. It also accused Dr. Shulkin’s chief of staff at the time of altering an email to justify the department’s paying the airfare of Dr. Shulkin’s wife.

Political appointees trying to wrestle away control of the department seized on the report to force the secretary’s ouster. Shortly after its release, Mr. Cashour and Mr. Ullyot called a prominent House staff member to ask for backup, according to a Republican congressional aide familiar with the call. Mr. Ullyot told the staff member, Jonathan Towers, that Dr. Shulkin would be gone by the weekend and asked if House Republicans would advocate the secretary’s removal, the Republican aide said.

Mr. Towers, who works for the chairman of the House Veterans Affairs Committee, Representative Phil Roe of Tennessee, told Mr. Ullyot “no” on the spot, the aide said, and pointed out that Mr. Roe had released a statement of support for the secretary just a day before.

Mr. Cashour and Mr. Ullyot have disputed that account. The purpose of the call, they said, was to warn Mr. Towers that doubts raised about the inspector general report by Dr. Shulkin were unfounded. Tiffany McGuffee Haverly, a spokeswoman for Mr. Roe, said on Monday that the chairman continued to have confidence in Dr. Shulkin.

Dr. Shulkin, meanwhile, disputed the report’s conclusions and went around his press office to personally reach out to the news media and publicize concerns that appointees in his office were “trying to undermine the department from within.”

There were other examples. In recent months Dr. Shulkin began to use a new, more inclusive motto for the department, changing the phrase “To care for him who shall have borne the battle and for his widow, and his orphan” so that it included female veterans, a former department official said.

Mr. Ullyot, carrying out orders from the White House, reversed the decision, and Dr. Shulkin relented.

The secretary has not spoken directly with Mr. Ullyot in three weeks, since the report’s release. His critics within the administration said he had isolated himself and become paranoid.

Allies of Dr. Shulkin have suspected that the same faction could be behind ominous-sounding reports that have appeared in the press saying that the inspector general was on the verge of releasing another damaging report, this time about Dr. Shulkin’s use of his in-house security detail — a report that could provide a final blow to the secretary. A spokesman for the inspector general did not reply to a request for comment.

Asked about Monday’s meeting, Mr. Cashour replied with a seemingly unrelated statement. “President Trump tasked Secretary Shulkin with reforming the V.A. so it could better serve the men and women who sacrificed to protect our country,” Mr. Cashour said. “Many reforms have already been enacted, many more are still needed, but nothing will distract the president, the secretary and the department from finding the best ways to provide care and benefits to our country’s heroes.”

March 8

Sanders says new health-care plan shows Dems moving toward ‘Medicare for all’

By Peter Sullivan via The Hill

Sen. Bernie Sanders (I-Vt.) said Monday that he thinks a new health-care plan from a Democratic think tank shows that the party is moving toward his position on health care.

Asked if he thinks the plan from the Center for American Progress (CAP), which comes very close to Sanders’s signature idea of “Medicare for all,” shows the Democratic Party is moving his way, Sanders told The Hill, “Yes, I do.”

The plan released by CAP, a group with close ties to Sanders’s former primary opponent Hillary Clinton, is not quite single-payer in that it still allows for employer-based insurance as an option. But it otherwise provides Medicare for all people, something very close to Sanders’s vision and a leftward shift from previous major Democratic plans.

Sanders alluded to the fact that the CAP plan does not go as far as his own, but called it a “step.”

He pressed his calls for universal coverage and said “I think that the most cost-effective way to do that is by expanding Medicare, eliminating the private insurance companies, and then saving tremendous amounts of money in administrative costs.”

“I believe in a Medicare for all, single-payer, but to the degree that people are talking about guaranteeing health care to all people, it’s a step.”

The CAP plan, called Medicare Extra for All, provides for a government-run health insurance plan modeled off Medicare for all, with the exception of those who choose to remain in employer-based coverage.

That is further than previous plans from Clinton or former President Obama, which largely called for a government-run “public option” that would compete alongside private insurers.

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