Congress Does Something Good

After many years of advocacy by the National Academy of Elder Law Attorneys and other advocacy groups for persons with disabilities, such as the Special Needs Alliance, the Special Needs Fairness Act of 2015, S. 349, was signed by President Obama on December 13, 2016. The Act allows persons with disabilities to create their own special needs trusts under 42 USCA 1391p(d)(4)(a) if they have the capacity to do so. The pending legislation was previously discussed in this blog.

The Special Needs Fairness Act addresses a problem for many persons with disabilities. Special needs trusts allow a person with a disability to set aside assets to supplement daily living expenses and provide additional care when government benefits are not sufficient. Prior to the enactment, such trusts could only be settled by a parent, grandparent, guardian, or the court, even when the person was not legally incapacitated. When there was no family member or guardian to act as settlor, filing a petition to have the court act as settlor was a purposeless formality that added considerable expense to the process and burdened overworked courts unnecessarily.track-star-mod

It is significant that no court action was necessary when a parent or grandparent acted as settlor of the Special Needs Trust. Requiring a court to establish the trust solely due to the unavailability of a parent or grandparent was an unfair restriction for a person with a disability in the exercise of his or her rights. The Special Needs Alliance supported the legislation, stating, in part, as follows:

Often, our members are called upon to assist persons with disabilities in creating special needs trusts, as provided in 42 U.S.C. §1396p(d)(4)(A). Unfortunately, this section does not permit a capable person with special needs to create his or her own trust, limiting the class of trustors to the person’s parents, grandparents, a guardian or the Court. Since adults often outlive their parents and grandparents, many persons with disabilities have no alternative but to expend unnecessary time and money to go to a Court to ask a judge to create the trust for them. This restriction fails to recognize that persons with disabilities should have rights equal to nondisabled citizens where possible, and it continues the traditional denigration of persons with disabilities.

The Act should have been a slam dunk. It relieves persons with disabilities of a major expense. The initial court action to establish a special needs trust typically costs $2,500 or more in legal fees and court costs. After the trust is established, many courts require annual accounts to be filed, costing another $1,500 to $2,500 per year. This was a prohibitive expense because special needs trusts are often created to preserve small amounts. Although benefitting many deserving persons, none of whom would be undocumented aliens, the Act costs the government nothing. That such a logical, fair, nondiscriminatory, beneficial law made it out of Congress provides a tiny glimmer of hope for more sanity in government.

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

The Prescription You Do Not Need

Among the clues that one is no longer young can be proliferation of prescription drugs in the medicine cabinet. In this age of miracle drugs you do not even have to be “older” to be taking a regimen of four, five, or more prescriptions, daily. Aggravating this tendency for Americans to take more and more prescriptions is the fact that there is no central registry of an individual’s prescriptions, so doctors are often unaware of all the drugs a patient is taking.

Once, while volunteering as a drug crisis counselor in the ‘70s, I was called to the home of a factory worker. This was unusual because most of our calls were for overdoses of psychedelics or “downers” by students and those who tuned in, turned on and dropped out.

The man was sitting at his dining room table staring out at his back yard, catatonic. He had been seeing a large number of psychiatrists, who all gave him prescriptions for strong mood-altering drugs. His wife showed us a large toiletry bag holding dozens of psychotropic prescriptions. It was no wonder he was in the o-zone.

In 40 years there has been little progress toward protecting patients from conflicting treatment plans from different doctors or unnecessary prescriptions by scrip mills. Pill freaks can still go from doctor to doctor collecting drug prescriptions at every stop. Now they are even armed with all the brand names of the pills they probably do not need because television is polluted with Big Pharma ads, as documented today by Bloom County.

I recently learned of another aggravating factor in the drug tsunami pouring over our country – drug “protocols.” A client who takes two prescription drugs recently picked up her prescriptions and found a third in the bag, a generic for Prilosec. Surprised, she looked it up on drugs.com and learned that it is a proton pump inhibitor (PPI). She told me, “I did not know that my proton pump needed inhibition. I always thought my lack of inhibition was part of my charm.”

Reading further, she learned that PPIs are used to treat heartburn and acid reflux. She had never had a problem with her GI tract and eats highly spiced, exotic foods with gustoand no ill effects.

Prilosec was recently found to be associated with an increased risk of dementia. In addition to the dementia risk, there was a respectable catalog of dire side-effects, such as diarrhea, muscle pain or spasms, heart-rate abnormalities, and seizures. Finally, since PPIs suppress production of stomach acid, the body tries to compensate for the increased pH in the gastro-intestinal tract after a period of PPI use by producing more stomach acid. This requires ever-higher doses or a more powerful PPI.

Now both curious and alarmed, she called the office of the doctor who prescribed the PPI to ask why. The nurse checked with the doctor, who told her he prescribed the PPI because it is listed in a drug “protocol” for her condition, which had nothing to do with the GI tract. In response to her expression of concern that she was being prescribed medication for symptoms she did not have, the nurse assured her that “everyone” takes PPIs. The nurse, herself, takes Prilosec, but will be graduating soon to a more powerful medication for acid reflux because Prilosec is losing its effectiveness for her (Remember about the body’s response to prolonged use of PPIs?).

Writing a prescription based on a drug “protocol” is like prescribing for a real patient from a hypothetical medical record. This raises concerns on many fronts.

First, if the patient does not have the condition the drug is intended to treat, the doctor is introducing unnecessary interactions with other drugs. Even if the doctor knows all the prescriptions the patient is using, he or she is not with the patient on a daily basis and will not know about over-the-counter drugs and supplements the patient may be consuming or lifestyle circumstances and diet that may affect how the drug is tolerated. A real patient is likely to differ in important ways from the hypothetical patient on which the protocol is based.

Secondly, prescribing from a protocol will lead to an upward spiral in the number of prescriptions doctors write. A drug protocol created by, or with the connivance of, the pharmaceutical industry will include every possible application for every drug, but will not catalog contraindicated products. As a consequence, the list of suggested pharmaceuticals for a given diagnosis will expand over time, but never contract.

Finally, many patients will take whatever prescriptions a doctor gives them. They may not realize that a prescription is treatment for symptoms or conditions they do not have. An unnecessary drug may become a regular part of the patient’s drug regime and the side effects of that unnecessary drug may require still more prescriptions to treat those side effects. Patients in assisted living facilities and nursing homes are especially prone to take pills they do not need. They are handed their medication and take it without question.

One resident in an assisted-living facility was taking over $500.00 per month in medication and was almost totally unresponsive. When the family had a money problem and couldn’t pay for the prescriptions, they stopped giving them to her. She soon perked up and started asking about her grandchildren. She had been chemically restrained to make her more tractable.

Our consumption of pharmaceutical products is out of hand. Automatic inclusion of additional substances based on a hypothetical model of a patient’s diagnosis would be one more aggravating factor. Physicians need to prescribe treatments based solely on analysis of the specific patient’s symptoms and conditions and patients need to be more inquisitive about the prescriptions they are being given. Further, any patient who is taking more than three prescriptions should have a periodic review by an independent pharmacist or different doctor to analyze the drug interactions going on.

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

Vital Legislation for Persons with Disabilities

The Special Needs Trust Fairness Act has been re-introduced in this Congress as Senate Bill 349.  Please urge your federal legislators to vote for this bill.  Read about it here.

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

Special Needs Trust Fairness Act of 2013

There is important federal legislation sponsored by Rep. Glenn Thompson, of Pennsylvania, that is pending in Congress.  This change to the Social Security Act is supported by the National Academy of Elder Law Attorneys and many advocacy groups for persons with disabilities, such as the Special Needs Alliance.  The legislation would allow persons with disabilities to create their own trusts under 42 USCA 1391p(d)(4)(a) if they have the capacity to do so.

The Special Needs Fairness Act of 2013, H.R. 2123, addresses a problem for many persons with disabilities.  Special Needs Trusts allow a person with a disability to set aside assets to supplement daily living expenses and provide additional care when government benefits are not sufficient.  Such a trust now must be settled by a parent, grandparent, guardian, or the court, even when the person is not incapacitated.  When there is no family member or guardian to act as settlor, filing a petition to have the court act as settlor is a purposeless formality that adds considerable expense to the process and burdens overworked courts unnecessarily.

It is significant that no court action is necessary when a parent or grandparent acts as settlor of the Special Needs Trust.  Requiring a court to establish the trust solely due to the unavailability of a parent or grandparent is an unfair restriction for a person with a disability in the exercise of his or her rights.  The Special Needs Alliance supports the legislation, stating, in part, as follows:

Often, our members are called upon to assist persons with disabilities in creating special needs trusts, as provided in 42 U.S.C. §1396p(d)(4)(A).  Unfortunately, this section does not permit a capable person with special needs to create his or her own trust, limiting the class of trustors to the person’s parents, grandparents, a guardian or the Court.  Since adults often outlive their parents and grandparents, many persons with disabilities have no alternative but to expend unnecessary time and money to go to a Court to ask a judge to create the trust for them.  This restriction fails to recognize that persons with disabilities should have rights equal to nondisabled citizens where possible, and it continues the traditional denigration of persons with disabilities.

Please contact your U.S. representative and ask him or her to support H.B. 2123.  If you are a member of an organization that provides assistance to, or advocacy for, persons with disabilities, urge your organization to support the Special Needs Fairness Act of 2013.

 

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com
 
©2013 John B. Payne, Attorney
 
 

Obamacare Individual Mandate Tax Compliance Form Hoax

A client told me today that his wife received an “Obamacare Individual Mandate Tax Compliance Form” that the IRS is now requiring. I told him that I found that hard to believe and asked him to fax it to me.

When I received the form pictured here, obamacare hoax I found that it was a hoax perpetrated by anti-health-care activists to incite opposition to the Affordable Care Act. If you look carefully at the bottom of the first page and the upper right corner of the second page, it states that this is not a real IRS form.

The perpetrators of this scam clearly find the facts insufficiently persuasive in supporting their position. Since the facts of the Affordable Care Act do not support repeal, they find it necessary to resort to mendacious stunts intended to fool the unsuspecting.

 

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com
 
©2013 John B. Payne, Attorney
 
 

Easy Screen for Dementia

Are you concerned about a parent or other relative’s mental slippage? Researchers led by a team from Emory University developed a brief, but surprisingly reliable, screening test for mild cognitive impairment. The test can be completed within minutes.

There are two components to the test: the Mini-Cog, or MC, and the Functional Activities Questionnaire, or FAQ. The MC portion is administered to the subject, but the FAQ is completed by a family member or friend who is familiar with the subject’s activities and capabilities.

The MC consists of three tasks. The first is to respond accurately and repeat a list of three unrelated objects, such as a tree, a chair, and a paperclip. If the subject cannot learn the list, a physician should be consulted immediately.

The second task is to draw a clock face. Inability to draw a clock face with the numbers and hands in the right places may indicate cognitive impairment.

The third task is to recall the three objects from the first task. If the subject cannot recall the three objects, this may indicate cognitive impairment.

Some subjects may be offended if they perceive that they are being “tested.” With creativity, the MC tests may be applied without the subject’s being aware that they are being tested. For example, ask the subject to remember three items that need to be picked up at the store – “Mom, I need Cheerios, toothpaste and bacon, but I don’t have anything to write with. Could you remind me?” Instead of asking the subject to draw a clock, reset a clock slow or fast and ask the subject how far off it is and to set it to the correct time.

The other part of the MC-FAQ is a battery of ten questions to be answered by a person who knows the subject well. Each question has five possible responses – not applicable, normal, has difficulty, needs help and dependent. If several activities are marked ‘needs help’ or ‘dependent’ the person should undergo professional evaluation.

These tests are not definitive. Only a comprehensive professional medical evaluation can diagnose or rule out true cognitive impairment. MC-FAQ gives family members some guidance as to whether there are signs of memory and cognitive impairment needing further evaluation.

 

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com
 
©2013 John B. Payne, Attorney