February 18

Medicare Now Covers Conversations About End-of-Life Care

Medicare beneficiaries may now discuss options for care at the end of life with their health care providers. 

Beneficiaries of course were already free to talk about advance care planning with their doctors or other qualified health professionals, but the practitioners could be reimbursed for such discussions only during a patient’s “Welcome to Medicare” visit, a time when the topic may not seem very relevant. As of January 1, 2016, Medicare will pay physicians for speaking at any time with Medicare beneficiaries and their families about different options for care and treatment at the end of life. 

These purely voluntary conversations will help enable patients to end their lives on their own terms. Patients are often unable to express themselves when a crisis is at hand and a decision needs to be made about how much or little care they want when facing a terminal illness. According to the Kaiser Family Foundation, one-quarter of Medicare’s budget is spent on patients in their last year of life.  For many patients, life-prolonging medical procedurs are unwanted and unwelcome.  A 2011 study found that when medical personnel know what kind of care a patient wants at the end of life, Medicare can be spared significant sums and the patient is more likely to die at home rather than in a hospital in some areas.

Now that discussions about advance care planning are a regular Medicare benefit, seniors and other Medicare beneficiaries will be able to learn about health care options that are available for end-of-life care, such as advance directives, palliative care and hospice care.  They can then determine which types of care they would like to have, and share their wishes with their practititioners and family.  After sufficient conversations with their doctors and other health professionals, the beneficiaries may be ready to execute legal documents, such as advance directives or “POLST” forms, and name a health care proxy to ensure that their wishes will be carried out. Studies have found that 40 percent of people over age 65 have not written down their wishes for end-of-life treatment. 

An early version of the Affordable Care Act (aka “Obamacare”) would have allowed Medicare to pay for these patient discussions, but former vice presidential candidate Sarah Palin and other opponents of health reform characterized them as government “death panels,” and the provision never made it into the final health care legislation. The Obama administration tried again in 2011, enacting a Medicare regulation that would have reimbursed doctors for discussing end-of-life planning with patients during their annual checkups, but quickly reversed course and withdrew the regulation, apparently fearing that it would revive the specter of  “death panels” at a time when the health reform law was under fierce attack from Republicans. 

Under the new regulations, the advance care planning discussions can take place during the annual wellness visit or at a separate appointment.  They are a reimbursable benefit under Medicare Part B and there will be a copayment if the conversation is not part of the annual wellness visit.

Talk to your elder law attorney about drawing up the documents to help ensure you receive the end-of-life medical treatment you want — no more and no less.


September 3

Wisconsin Has Rejected $550 Million in Federal Dollars for Health Care

With its new two-year budget in place, Wisconsin now has passed up more than $550 million in federal money available under the Affordable Care Act. The state previously rejected roughly $200 million in federal money available starting in January 2014, according to the Legislative Fiscal Bureau. The new budget turned away another $360 million — far more than the $250 million in cuts the same budget made to the University of Wisconsin System. Yet accepting the federal money was never seriously considered by the Republican-controlled Legislature. The state has remained committed to Gov. Scott Walker’s approach to the law. Walker is the only governor in the country who has used the law to expand access to health insurance while turning down the additional federal dollars available to pay for it. Most Republican governors have opted not to expand their Medicaid programs through the law. In contrast, Walker did expand Wisconsin’s Medicaid program, and 145,000 people have gained coverage as a result. The governor just did it in a way that costs state taxpayers — though not federal taxpayers — more money.

June 11

CMS Issues Guidance on Applying Protections to Spouses of HCBS Recipients

Little noticed among its more famous provisions, the Affordable Care Act expanded impoverishment protections to the spouses of home and community-based services (HCBS) beneficiaries.  However, although the rules have been in effect since 2014, states have not always been in compliance, according to Justice in Aging (formerly the National Senior Citizens Law Center)

States now have less of an excuse not to comply because the Centers for Medicare and Medicaid Services (CMS) has issued guidance to states on the implementation of section 2404 of the Affordable Care Act which amended section 1924 of the Social Security Act, “Protection for Recipients of Home and Community-Based Services Against Spousal Impoverishment.” The Act amended section 1924(h)(1) to require, for the five-year period beginning January 1, 2014, that states include in the definition of an “institutionalized spouse” married individuals who are “eligible for medical assistance for home and community-based services . . . ”

The guidance describes how states must apply the statute in making Medicaid eligibility determinations.  Justice in Aging summarized some of the highlights in a recent Health Network Alert:

  • Under the statute, an individual must be eligible for HCBS in order for the protections to apply, and CMS interprets this to mean individuals must meet the nonfinancial eligibility requirements for HCBS.
  • For those eligible through use of the spousal eligibility rules based on their need for HCBS, the statute does not require that they actually receive the HCBS for which they are eligible. This rule will apply, for example, to clients who are on a waiting list for a waiver.
  • CMS provides additional guidance on what type of HCBS an applicant must be eligible for in order for spousal impoverishment rules to apply.  
  • The guidance includes clarification on how the expanded application of spousal impoverishment rules applies in post eligibility treatment of income (PETI) cases and the rule’s applicability to individuals deemed eligible for services under the Modified Adjusted Gross Income (MAGI).  

 To read the letter providing guidance to state Medicaid Directors, click here

May 14

House Democrats Call for Repeal of Medical Device Tax

More than a dozen Democrats are pressuring House leadership to advance a bill that repeals ObamaCare’s medical device tax before Memorial Day. Rep. Scott Peters (Calif.) led 17 House Democrats in a letter to Speaker John Boehner (R-Ohio) and Minority Leader Nancy Pelosi (D-Calif.) urging “timely passage” of the bill. Peters and 17 other Democrats warned that the 2.3 percent tax on medical devices is prompting companies to slash their budgets on research and development, which they say “puts the discovery of new breakthrough medical technologies at risk.” The medical device tax, which applies to all manufacturers and importers, has been a much-maligned piece of ObamaCare since its passage. Lawmakers from both parties — including prominent Democrats such as Sens. Elizabeth Warren (Mass.) and Al Franken (Minn.) — have repeatedly called on Congress to repeal the provision. The provision was initially included as a funding mechanism for the law. Repealing the provision would cost $26 billion over the 2015-2024 period, according to a February report by the Center on Budget and Policy Priorities.

For the article from The Hill, click here.