Frankly Speaking Blog - North Carolina's First Elder Law Firm

Medicaid Expansion an Early Success

By Jonathan D. Williams

Although there has been much publicity of the early rollout of the health care exchanges for purchase of individual health care coverage under the Affordable Care Act (ACA, a.k.a. “Obamacare”), a key part of the overall health care reform overhaul appears to be off to a very robust start in states that agreed to accept federal money to expand Medicaid. In an AP article published today, it is reported that in the 10 states that have reported data, approximately 444,000 individuals have signed up for Medicaid since open enrollment began.

Previously, Medicaid was available only for those who not only demonstrated financial need, but also belonged to a vulnerable population, including the aged, blind, or disabled; pregnant women; families with children; and those in need of long-term care in a nursing facility. As part of the 2009 ACA health care reform, Medicaid was to be expanded to be available for all who demonstrated the requisite financial need, regardless of other factors. The Supreme Court’s decision on the ACA allowed states to opt-out of the expansion, and many have done so, including North Carolina. This puts additional strain on the health care exchanges in those states. However, in states that are participating in the expansion of Medicaid, it appears that enrollment is high, in line with most observers’ expectations.

New Research Into How the Brain Cleans Itself During Sleep

A new study has been published about how the brain cleans itself of waste products. The brain, like every other body organ, produces waste products. Among those waste products is a protein called amyloid-beta, which is a key component in the plaque that builds up in the brains of individuals with Alzheimer’s disease. Researchers noted that levels of amyloid-beta are higher during wakefulness than during sleep, and designed a study to learn more about why the protein levels change so much.

The study concludes that essentially the brain “cleans” itself during sleep by contracting the size of brain cells and pumping cerebral spinal fluid through the resulting spaces, flushing waste into the circulatory system, and eventually the liver. The lead author, Dr. Maiken Nedergaard, explains that “the brain has different functional states when asleep and when awake. In fact, the restorative nature of sleep appears to be the result of the active clearance of the by-products of neural activity that accumulate during wakefulness.” The studies performed thus far have been on the brains of mice.

This research may indicate a direction for future Alzheimer’s research. If scientists can learn more about the timing and mechanism of the brain’s own cleaning system, they may better understand why the amyloid-beta protein builds up in Alzheimer’s patients, and how that might be prevented. The research may also point the way for further research into Parkinson’s disease and Lewy Body dementia. More information may be found here and here.

 

Life is a Dance – Are You Dancing into Late Age?

A few years ago, a study was published that found that square dancing helped prolong memory loss. Don’t be Square – Dance!! Do-Si-Do Fitness. My mother, Catherine O’Steen, currently 90 years young, is the best example I know. She’s been square dancing as often as she can when a partner is available. Her mind and physical health are as good as ever (for which my sisters are thankful.) In the “your health” section of the AARP Bulletin, September 2013, Margery D. Rosen, reminds us that dancing give us a “great cardio boost, strengthens bones, works on all major muscle groups, builds stamina and improves balance.” It drives away loneliness and ramps up brain power – to all of which my mother can attest. Life is a dance and when you keep dancing, you keep living.    

 

North Carolina No Longer Entitled to One-Third of Medical Malpractice Award

                As most Medicaid recipients know, at the end of that recipient's life, Medicaid will be allowed to recover against their estate in repayment for Medicaid's expenditures on their care. Medicaid is also allowed to demand reimbursement when a Medicaid recipient is awarded damages in a medical malpractice suit.

                 Until March of 2013, North Carolina's Department of Health and Human Services (DHHS) had been enforcing North Carolina state law that enabled DHHS to automatically recover the lesser of either: a) full reimbursement of Medicaid's expenses; or b) one-third of the total medical malpractice award, regardless of how much was designated for medical expenses.

                 However, in March of 2013, the U.S. Supreme Court ruled in a case involving a young girl who was awarded $2.8 million in medical malpractice settlement, that the federal Medicaid Act preempts this North Carolina state law. As a result, North Carolina (and all other states) can no longer demand "any portion of a beneficiary's tort recovery except the share that is attributable to medical expenses," Justice Anthony Kennedy. The Court made clear that determining the appropriate amount of reimbursement should be done on a case by case basis, and that states will no longer be able automatically take as recompense one-third of a medical malpractice award. States are now considering setting up administrative processes by which to review each case and make individual determinations.

Planning for Veterans Benefits May Leave You Ineligible for Medicaid Benefits

If you are a veteran or a surviving spouse of a veteran who has served at least 90 days active duty, with at least one day served during a time of war, you may be eligible for veterans benefits to assist with continuing care in the home, assisted living facility, or in a nursing home. While most benefits programs have strict financial requirements, the Department of Veterans Affairs evaluates each case individually regarding the amount of assets and income a veteran or their spouse may have and still receive benefits. In addition, there must be a medical reason for the veterans (or surviving spouse’s) need for assistance with activities of daily living (such as bathing, dressing, meals, toileting). These benefits come in form of around $1,000-$2,000.

Often, veterans who apply for veterans benefits find that they are ineligible due to their level of income or financial resources. Many attorneys assist those families with asset transfers and planning aimed at getting the veterans eligible for veterans benefits. This type of planning can come at a very high price, however. In fact, it can cost you hundreds of thousands of dollars.

It isn’t that attorneys charge thousands of dollars to assist in planning for veterans benefits, it’s that their planning often results in Medicaid eligibility. Many attorneys or advocates that assist veterans in qualifying for veterans benefits know only the rules for veterans benefits, and not the Medicaid eligibility requirements. When they transfer assets, they make sure the transfers are seen as exempt by the Veterans Affairs administration, but those same transfers very often result in penalties under the Medicaid program. In effect, by qualifying to receive around $1,500 per month for skilled nursing assistance in the form of Veterans benefits, you sabotage your ability to acquire Medicaid benefits, which cover all of the costs of skilled nursing care (an average of $7,500 per month in North Carolina). It is often very difficult to qualify for both programs, which makes choosing the program you will plan for critical.

If you are a veteran who may be in need of skilled nursing care, you should speak with an attorney who is knowledgeable in the areas of both veterans benefits and Medicaid benefits. Ask that attorney to help you determine which program would provide you with the benefits best suited to your needs, and how to plan for those benefits.

We can help you with these issues. Call us at 877.503.5337 or visit us on the web at www.nc-law.com.

Caregiving Children

Many children who step into caregiving roles for their senior parents experience the strange relationship reversal that they are now giving the kind of care they used to receive from their parents. A recent New York Times blog explored this dynamic in more detail.

 Dr. Harley Rotbart of the University of Colorado School of Medicine notes in particular the similarities between parenting and caregiving for senior parents, arguing that the experience of raising children is good preparation for the role of caregiver. In particular, the author notes the difficulty of balancing between independence and “helicoptering,” because almost all adults resist the relinquishment of independence and acceptance of help, but most will need to do both as they age.

 Another key aspect of caring for your aging parents is helping them plan for long-term care. We frequently meet with parents and children together, to help them explore the options for sustaining the parents’ quality of life while serving as good stewards of the parents’ legacies. To schedule your appointment with us, please contact us at 336.275.9567 or visit us on the web at www.nc-law.com.

Advance Directives: Conversations Are More Important Than Documents

All estate plans should include advance directives, but more important than the documents you sign are the conversations you have with your closest family members and your medical providers about the kind of care you would like (or not like) during a medical crisis or at the end of your life. These include a durable power of attorney so that a trusted relative or friend has the authority to act for you if you become incapacitated; a health care power of attorney so that someone is in place to make medical decisions on your behalf in an emergency; and a living will so that you can make your wishes clear regarding medical care at the end of your life.

A recent New York Times editorial highlights a relatively recent addition to end-of-life care in North Carolina, the Medical Order for Scope of Treatment, or MOST. Unlike the advance directives mentioned above, this is a medical order that is signed by both you and your physician. As a medical order, it remains in your medical file and travels with you wherever you receive care. It instructs other physicians and medical providers about your wishes for end-of-life care, such as CPR, artificial nutrition and hydration (i.e., feeding tubes), intubation, and even transfer to a hospital. As important as the document itself is the conversation you will have with your doctor, which can help you understand your options for end-of-life care and help you make decisions that are medically informed. 

It is also important that you have meaningful conversations with your closest family members about your wishes for end-of-life care. This will ease the burden and stress on those who love you at a very difficult time, and increase the likelihood that your wishes will be carried out. It is particularly important that your health care agent be very familiar with your wishes in this and other medical contexts.

We provide all clients with resources for helping you have these critical but sometimes difficult conversations with those closest to you. To schedule an appointment to discuss your estate plan, please contact us at 877.503.5337 or visit us on the web at www.nc-law.com.

Technology Helps Elderly Individuals Care for Themselves at Home

A recent New York Times article explains how technology is being used to ensure the safety of elderly individuals who live alone at home. Technologies like “eNeighbor,” a system of sensors that are placed all over the home, are used to monitor the movements of elderly citizens and alert emergency responders if any non-typical movements occur, or if usual movements do not occur. The article tells the story of Bertha Branch to illustrate how eNeighbor works. Bertha is 78 and lives alone in her home. One morning, a wireless sensor under her bed detected that she had gotten out of bed, but other sensors in the house registered that she had not been to any of the other rooms in the house, including the bathroom attached to her bedroom. After it became clear that either Bertha was standing in the same spot when she normally would have already visited her bathroom or had fallen, eNeighbor system made phone calls to neighbors, family, and finally to 911. When firefighters arrived, Bertha had been on the floor, where she had fallen and found herself unable to get up, for less than an hour.

Other systems are used to remind and assist people in checking their vitals each day. The same machine can assess and record your weight, blood pressure, temperature, and send all of the information to a monitoring program. If your vitals show evidence of a risk to your health, a nurse from the monitoring program will call you and ask that you see your doctor right away. They also remind you to take medications, and ask questions that prompt new instructions. These machines ask questions like, “Are you experiencing more difficulty breathing today?” and “Are your ankles more swollen than usual?”

Of course, technologies like eNeighbor are still new and many of the kinks still have to be ironed out. They are also often expensive and are not yet covered by government benefits or private insurance plans. But as similar technologies become more mainstreamed and dependable, they could be used to help ensure a higher quality of life for elderly citizens who live at home, and could allow them to stay at home much longer than they would have been able to before such technology existed.

Class Action Settlement May Ease Rules on Medicare Coverage for Skilled Nursing Care

By Jonathan D. Williams, JD

There is good news for Medicare recipients in need of costly skilled nursing care following a health crisis. Medicare currently covers skilled nursing care following certain health care crises for up to 100 days. However, many of our clients have had that benefit withdrawn prior to the end of the 100 days due to lack of medical or functional improvement, despite there being no federal law or regulations requiring potential for improvement as a condition for the nursing care benefit.

 A group of Medicare beneficiaries agrees, and has formed a class action to assert a claim against the federal government for the early withdrawal of those benefits. As reported in the New York Times, the federal government has agreed to revise their internal policies to ensure that Medicare coverage of these nursing services (as well as some home health care and outpatient therapy services) “does not turn on the presence or absence of an individual’s potential for improvement,” but rather is based solely on the medical needs of the Medicare beneficiary. The settlement is expected to be approved soon by a federal judge, and will minimize the risk that Medicare coverage of nursing care is withdrawn prior to the 100-day timeframe.

 This is good news because it gives patients and their families more time to plan for the patient’s long-term care needs after the Medicare benefits expire. If you or a family member are faced with the enormous expenses of long-term care, or wish to plan ahead to avoid such a crisis, we may be able to help. Please contact our office for an asset preservation planning consultation at 877.503.5337 or email [email protected] Visit us on the web at www.nc-law.com.

 

New COLA Takes Effect December 2011

By A. Frank Johns JD, LLM, CELA

Social Security Income and Social Security Disability Insurance beneficiaries will realize a 3.6% increase in benefit payments starting with the December 2011 payments, which are payable in January 2012.  This is a result of a newly implemented cost-of-living adjustment, also known as COLA.  Legislation originally enacted in 1973 provides for cost of living adjustments which enable Social Security (an entitlement program that allows those who pay Social Security taxes during the years in which they work to draw benefits when they reach a certain age) and Supplemental Security Income (also known as SSI; a program designed to provide food, clothing and shelter to those who are aged, blind, or disabled and have little or no income) benefits to keep pace with inflation, (Social Security Online).

This marks the first time a COLA has been implemented since 2008.  Currently, the average monthly Social Security payment for a worker with disabilities is $1,072.  In January 2012, the payment will rise to $1,111.  The federal SSI payment standard will increase to $698 a month for an individual and $1,048 a month for a couple, (Social Security Online).  The SSI resource allowance will remain the same at $2,000 for an individual and $3,000 for a couple, but the amount of money that a person can earn without engaging in Substantial Gainful Activity, which can result in the loss of SSDI or SSI benefits, will increase to $1,010 a month for a person who is a not blind and $1,690 for a person who is blind, (Social Security Online).  A person who is earning more than a certain monthly amount (net of impairment-related work expenses) is ordinarily considered to be engaging in Substantial Gainful Activity (Social Security Online Substantial Gainful Activity).

For more information on how to calculate your COLA, visit http://www.ssa.gov/oact/cola/latest COLA.html.  If you would like to speak with an attorney about how the new COLA will affect you, please call us at (336) 275-9567.  We look forward to serving you!