Vital Information about Medicaid and Long-Term Care

Please read this crucial explanation of the importance of Medicaid to long-term care residents and their families from the Long Term Community Coalition:  ltccc-medicaid-middle-class

Repealing the Affordable Care Act

Without spin or editorializing on the issue, here are some facts from The Center for Medicare Advocacy, medicareadvocacy.org, about the program Congress plans to repeal:

  • The uninsured percentage of Americans under 65 is the currently the lowest in decades. Beginning in 2014, the rate dropped from 16.6% to 10.5%.
  • As of March 31, 2016, 11.1 million people have coverage through the ACA Marketplace.
  • As of 2015, 11 million people in 31 states and the District of Columbia had coverage through Medicaid expansion under ACA, out of a total of 81 million on Medicaid.
  • There are 19 states that did not expand Medicaid: Alabama, Florida, Georgia, Kansas, Idaho, Maine, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, South Carolina, South Dakota, Texas, Tennessee, Utah, Virginia, Wisconsin and Wyoming.
  • However, the ACA resulted in 16,748,000 people becoming eligible for Medicaid as of September 2016.

Congress says it will replace the ACA with something better. Dare we hope?

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2017 John B. Payne, Attorney

Black Lives Matter, Too

Many of my fellow Whites see “Black Lives Matter” as meaning that police lives do not matter. That is a sad symptom of the sick state of ethnic and race relations in this country. Some who support Black Lives Matter are anti-police, just as some anti-establishment activists shouted “Off the Pigs” during Viet Nam War protests. However, those hostile and vicious thugs were and are a small minority trying to subvert the humanitarian goals of the larger movement. “Black Lives Matter” should be understood to mean, “Black Lives Matter, Too.”

I am incredibly proud of my daughters, who took in pound puppies (not the Tonka toys, but real pound puppies) and loved them until they are now better citizens than many of our high government officials and corporate CEOs. One dog, in particular, spent his first four months as a stray on the streets of Las Vegas. I cannot imagine this dog’s life as a stray in a desert city. How he found enough water to drink, let alone food, is a profound mystery.

Similarly, I cannot imagine the life of a coal miner who markwayne mullinworks grueling hours deep under ground and literally sacrifices his health to support his family. I cannot imagine the life of a farm worker who endures 14-hour days, bent over under a blistering sun, for less pay than a typical American spends on car payments. I cannot imagine the life of a gay or transgendered high school student afraid to enter a bathroom. I cannot imagine the life of an unemployed young Black or Latino in South Los Angeles. And I cannot imagine the life of a pregnant teenager in a state that makes it as difficult as possible to obtain an abortion. All of these lifes matter!

It is a huge and tragic problem that many, if not most, middle-class Whites think that they understand the lives of people who are different from them. They look at an unemployed person and assume that he or she is unemployed by choice. They see a pregnant welfare mother and assume that it is her choice to have another baby or that she does not know how to avoid becoming pregnant. They think the server who delivers their $3.49 Breakfast Special at the local hash house for sub-minimum wages works there by choice.

In truth, the coal minor, the farm worker, the unemployed Black or Latino and the server are all doing the best they can, given their opportunities and skills. Black Lives Matter is not just about Black men being shot by police. It is aimed at the gaping social inequality between the haves and the have-nots. The problem is not oppression of Blacks. It is oppression and denial of opportunity for all citizens who are disadvantaged by substandard education, physical disability, abysmal poverty, and discrimination based on race, gender identity, religion, ethnicity, and disability.

Our national leaders and the media want us to believe that the Black Lives Matter movement – to the extent that it is a movement – is a gaggle of gang members, terrorists and violent anarchists. That is their excuse to dismiss Black Lives Matter as anti-democratic and un-American because they do not want to effect change. They do not want good inner-city and rural schools nor are they willing to invest in the necessary infrastructure to make public transportation a reasonable alternative to private car ownership. They do not want affordable health care for all Americans. They hope to ignore the demands for equal opportunity and fairness and vilify and suppress Black Lives Matter the way they vilify and suppress the Occupy movement.

Black Lives Matter is not anti-police, it is pro-democracy and pro-equality. Instead of attacking Black Lives Matter, like the quasi-military forces of a tyrant cracking down on peaceful demonstrators, local police personnel should support its aims. Police officers are under the thumb of the establishment as much as anyone. They are being laid off and losing health and retirement benefits, just like employees in many fields. Furthermore, municipal police may have fairly good compensation and benefits, but they are vastly outnumbered by motivated and dedicated “security guards” who are forced to accept far lower compensation and minimal benefits.brett guthrie

A generation ago, security guards in state offices were civil servants, with reasonable wages, benefits and opportunities for advancement. Since then, the government has farmed out the responsibility for security in state and federal offices to the lowest-bidding private security companies, ensuring that the men and women securing the safety in government buildings will be paid as little as possible and deprived of even basic employee benefits. The same privatization (employee privation) is happening in every other government or corporate sphere that the plutocrats and autocrats in charge can rationalize. Even highly-trained and educated professionals are being downgraded to the status of casual labor, lacking benefits and the ability to negotiate the conditions of their employment.

Black Lives Matter is not just about Black men shot by police. It is about giving equal opportunity to children and adults who are Black or Latino or Muslim or LGBT, or who have disabilities. It is about ending voter suppression and living up to the ideals expressed in the Declaration of Independence and the rights guaranteed by the Constitution.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2016 John B. Payne, Attorney

Long-Term Care Insurance – Smart Buy or Not?

In another blog, a man in his late 60s was complaining that long-term care insurance (LTCI) he bought at age 65 was costing him $3,600 per year. He bemoaned not buying it younger so it would cost less.

It would have cost less because he would have paid premiums longer. Very few find themselves in nursing homes before age 85 — less than 4%. That is a 96% chance that if you buy LTCI at age 65 you will pay on it for 20 years – assuming that you do not get priced out of the market in that time.

Some agents selling LTCI promise that there will be no “rate” increase. However, that does not mean that the premium cannot go up. The company is still free to increase the cost of insurance for a class of customers. Insurance companies intend to make a profit. The executives would rather tarred and feathered than absorb increased claims costs without commensurate premium increases.

As a result of the run-up in claims in the last decade, longstanding customers have been subjected to large hikes in the premiums they pay. Many octogenarian insureds have been faced with the choice of absorbing a 100% increase in premiums or accepting a 50% decrease in promised benefits. A 65-year-old LTCI customer may be able to afford the premiums initially, but there is no guarantee he or she will not lose the coverage due to increased cost at the age it would likely be needed.

If invested, $3,600 per year would grow to almost $90,000, even at a measly 2% rate of return. Granted, the same policy might only cost $2,160 per year if purchased at age 55, but by age 85 the total paid in would be the same.

Compare the LTCI market 20 years ago to today’s. Many insurers no longer carry LTC policies and those that are still in that market charge much higher premiums. Do you think that LTCI will not change over the next 20 years? Consider investing an amount equal to the LTCI premium regularly instead of buying LTCI. For examples and further discussion, see “FAQ – Long-Term Care Insurance” at http://law-business.com/long-term-care-insurance/.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2016 John B. Payne, Attorney

My Community, My Home: Pass the Disability Integration Act of 2015

Sen. Charles Schumer has introduced Senate Bill 2427, the Disability Integration Act of 2015.  If enacted, this bill would be like the Civil Rights Act for people threatened with placement in a nursing home. It would be a tremendous step forward in protecting the rights of persons with disabling conditions and implementing the guarantee of least-restrictive placement required by the Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999). The court stated there that when an individual can receive appropriate care in a community setting and does not want to be placed in an institution, the state has an obligation, if the resources are available, to effect community placement.

Many persons with disabilities reside in nursing homes against their will because states do not have sufficient home- and community-based services (HCBS) to help them live safely and comfortably outside of long-term care facilities (LTCF). Every state has a “waiver” or HCBS program, but most of these programs are not sufficiently funded. The programs are called “waivers” because Medicaid funds were originally limited to care in LTCFs. The federal government set up HCBS funding to allow waiver of the limitation on the use of funds for care in LTCFs only.capitol-building-1

Most states have waiting lists for waiver services due to lack of funding and eligibility constraints to restrict the applicant pool. Waiver services are typically less costly per recipient than care in an LTCF, but states and the federal government have been reluctant to expand waiver programs because the demand would be so high. Almost no aged person wants to be placed in a nursing home, but nearly every aged person who needs assistance or supervision would want to receive care at home. By limiting Medicaid to those who are in LTCFs, demand for services is greatly reduced. There is also an inflexible income cap for waiver services that bars medium-income applicants from qualifying.

Another reason government policymakers limit HCBS is that they see it as problematic administratively. It is more difficult to ensure that the services purchased are delivered properly when performed in homes than when delivered in facilities.

The Disability Integration Act would require states to offer HCBS as an alternative to care in a nursing home to nearly anyone who could be adequately cared for in the community. In brief, the Act provides:

No public entity or LTSS [long-term services and support] insurance provider shall deny an individual with an LTSS disability who is eligible for institutional placement, or otherwise discriminate against that individual in the provision of, community-based long-term services and supports that enable the individual to live in the community and lead an independent life. Disability Integration Act, § 4(a), SB 2427.

The Act continues for more than 6,000 words defining and prohibiting the various ways states, insurance companies, care providers and others might make it difficult for persons with disabilities to get HCBS instead of being institutionalized. Despite the incredible need for legislation to implement what the Supreme Court has ruled is necessary and the tremendous benefit HCBS provides in avoiding care in nursing homes, one would have to be an incorrigible optimist to expect this Congress to do the right thing – whether or not there is cost involved. One would also have to be a grinning naïf not to perceive that this is an election-year ploy.

The Special Needs Fairness Act, which would benefit many persons with disabilities at no cost to the government, has languished in Congress for over two years. This dampens any expectation that a needed reform will move forward. Despite the dim prospects for SB 2427, it is a very good piece of legislation. Please urge your federal legislators to sign on to the Disability Integraton Act of 2015.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2015 John B. Payne, Attorney

Medicare is Fiscally Healthy

Once again, Medicare is under attack.  The gaggle of anti-government ideologues who want to privatize Social Security, raise the retirement age and pack heat in church have backed off on repeal of Medicare, but are still determined to curtail it.  They want to “reform” Medicare by shifting more costs onto program members.  Retirees and the disabled need increased health-care costs the way Pres. Obama needs more critics.

The recurrent refrain of the Medicare doomflacks is that Medicare will go bankrupt in a few years due to the increase in members as Baby Boomers retire.  In reality, Medicare cannot go bankrupt because the Medicare Trust Fund is continually replenished by the Medicare employment tax.  Furthermore, the Medicare Trust Fund, which is a part of the Old-Age, Survivors and Disability Insurance Trust Fund, ebbs and flows in response to the U.S. economy.

Those who are covered by Medicare know what a wonderful program it is.  But for Medicare, most retirees in the United States would be forced to choose between medical care and food.  Having paid taxes for their entire working lives, retirees deserve the opportunity to see a doctor when necessary and to have hospitalization coverage.

Now that 28 states have adopted health care under the Affordable Care Act for their citizens, it would be a cruel joke on our senior population to jack up the cost of Medicare.  Drop a dime on your U.S. senator and representative.  Let her or him know that you do not support cutbacks in Medicare.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2015 John B. Payne, Attorney

A Cogent Justification of Short-Term Annuities

Guest columnist Michael McGuire, a highly-skilled and congenial California Elder Law attorney, offers this criticism of the rationale of the decision in Zahner v. Mackereth discussed in Third Circuit Perfidy. Mick explains that short-term annuities are legitimate tools in complying with the vagaries of Medicaid laws and regulations because they are accepted by the federal Medicaid agency, because they are financially beneficial for the state, as well as the Medicaid applicant, and because the judge’s distinction between short-term and five-year annuities is arbitrary. Here is Mick’s post:

In 2010, the organization of Medicaid Administrators wrote a letter to CMS [Centers for Medicare and Medicaid Services] pleading with them to ‘stop these sham’ annuities. The CMS has not changed its policies. No one has petitioned Congress to amend the DRA [Deficit Reduction Act of 2005].

The basic reasoning behind the DRA provisions, as has always been the case with annuities, is the conversion of offending assets into a stream of income is a win-win in the world of Medicaid. The claimant transfers assets, converts them into income, thereby reducing the amount of MMMNA [needs allowance] exemptions available to the community spouse. The State wins because more of the claimant’s income is assigned to the share of cost, thereby reducing the amount the State must pay every month for the Claimant’s expenses.

The community spouse wins, because the payout of the irrevocable annuity flows out the them in the form of monthly distributions. The ‘win’ is limited, however, by the fact that the community spouse may have lost some or all of the MMMNA. This is an actuarially ‘good bet’ for the State based upon how long people survive in nursing homes. Although the average stay is usually quoted as 34 months, that is skewed statistically to be a group comprised of patients that have survived 90 days. Most don’t make it.

I had an annuity case here in California, State went after remaining payments to beneficiary after Claimant died seven months into a three year contract. Week before trial, Judge stated the obvious, “This has nothing to do with policy. This is strictly about what the law says.” The AG [California Attorney General] folded and went home the day before the trial.

The decision here is about policy…5 years is OK, 4.9 years is not? No to 12 months, somehow 60 months “feels” right? The DRA wasn’t clear? CMS, Congress, Governor’s Conference, state legislatures do not have the ability or understand how to change regulations?

I can only speak based upon experience in California, but the DHCS really believes when they dump something in a manual, years go by, somehow their policies have morphed into law. They are specifically prohibited from that process, creating ‘underground’ regulations. In fact, they are provided with annual briefings from the Office of Administrative Law, the AG, warning them not to do that specifically.

When a court gets ’emotional’, looking for a rationale to satisfy its sense of how things should be, buys into a line of thinking that, as in California, a $70 Billion agency is being ‘gamed’, then the reasoning for something like stream-of-income vs. assets mutual benefits gets pushed aside.

Finally, to be truly insightful, exactly how many under 60 month annuities, totaling exactly how many dollars, adjusted for MMMNA reductions in all of those, caused the State to exactly pay how much in benefits that it should not have been ‘forced’ to pay by following the law, expressed as a percentage of the total LTC [long-term care] case load and expenditures during that period?

Now stand back and watch an AG’s head explode.

Michael McGuire
Attorney at Law
California Elder Law Center
5220 Clark Ave., Ste. 220
Lakewood, CA 90712
562-920-6100
mmcguire@calelderlaw.com
http://www.calelderlaw.com

Offices in Long Beach/Lakewood, Palm Desert, Palm Springs

 

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com
 
©2014 John B. Payne, Attorney