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Elder Counselor Newsletter

We are certainly watching a Civics class in action as the Republicans in the House and Senate work toward a repeal and replacement of the Affordable Care Act (ObamaCare). The House passed its bill, the American Health Care Act (AHCA) in May. The Senate is taking the next step with its Better Care Reconciliation Act, which was introduced on June 22. Senate Majority Leader Mitch McConnell had hoped for a vote before the July 4 recess but postponed it because several Senate Republicans publicly stated they would not vote for it in its present form.

In this issue of The ElderCounselor, we will look at what is in the current Senate bill, how it differs from the House bill, why some are opposed to it, and what the future might hold. But first, let’s revisit why Republicans are trying so hard to repeal and replace ObamaCare and how they are going about it.


Why Repeal and Replace ObamaCare?

ObamaCare, you may remember, was passed by the Democrats in 2010 with no Republican support. Ever since, Republicans have campaigned on repealing and replacing the program, which was unpopular with many Americans. “Repeal and Replace” was their rallying cry to voters to help them win back control of the House in 2012, then the Senate in 2014, and finally the Presidency in 2016. If the Republicans are not able to fulfill this major promise, some may be in danger of losing their seats in the next election, as they would likely be blamed for the problems with ObamaCare if they don’t fix them. These are the political reasons.

The practical reason is that ObamaCare is self-destructing. Premiums continue to rise, deductibles and copays are so high that many cannot afford to use their plans, and insurers, who underestimated costs, are leaving markets. In 2018, many counties across the country will have no plans in the individual marketplace. Democrats admit that ObamaCare has problems and needs a major fix to survive. But they are not on board with repeal and replace of such a signature piece of legislation, and are happy to stay on the sidelines while Republicans try to find a way to pass new legislation on their own.


The Legislative Process

The normal legislative process is that a bill begins in the House, where it is written, discussed and approved by a committee before the House votes on it. If it passes the House, it is then sent to the Senate. The Senate can vote on the same bill, make amendments to the House bill, or create its own bill. Eventually, both the House and Senate must vote on the same bill, so if there are differences, members of both the House and Senate meet in committee to resolve them. Once a bill passes both the House and Senate, it is then sent to the President who can sign it into law or veto it.

As we are witnessing, this can be a messy process. Right now, there is a House bill on health care that has passed the House, and a Senate bill that has not passed the Senate. Discussions and amendments are still occurring with the Senate bill in hopes it will pass soon. The public posture is that this messy legislative process is making the bill better.

Further complicating this process is that while the Republicans have a majority in both the House and the Senate, they only have 52 Republican Senators. 60 votes are required to pass new legislation, so they are attempting to pass health care legislation through the Budget Reconciliation process. It only requires 51 votes, but it limits the legislation to budget-related items only. They would not be able to include provisions some Republicans want in a full repeal and replace bill—for example, letting insurance companies sell across state lines to increase competition, lower prices and create better plans; and allowing the government to negotiate lower drug prices. Issues like these would have to be voted on later.

For the Senate bill to pass in Reconciliation, 50 Republicans must vote for the bill, since no Democrat or Independent is expected to vote for the bill. Vice-President Pence would break the tie if needed.


How Do the Current Senate Bill and the House Bill Compare?

There are broad similarities in both bills, including the repeal of some major parts of ObamaCare, but neither is a full repeal and replace. Senate Majority Leader McConnell calls the Senate bill a “discussion draft,” as they work to get the needed Senators on board. Let’s look at how the House bill and the current Senate bill compare.


Both Bills Repeal Mandates and Most ObamaCare Taxes

Both bills call for the elimination of 1) the individual mandate that required every person to have health insurance or pay a fine and 2) the employer mandate that forces employers with at least 50 employees to provide healthcare coverage. Most of the tax increases that were imposed to pay for ObamaCare programs are also eliminated, including taxes on net investment income, insurers, drug makers and medical device manufacturers. The Senate bill keeps the “Cadillac tax” on expensive employer insurance plans, though it would be delayed until 2026.


Changes to Medicaid

Medicaid is an entitlement program that provides health care to low-income Americans, the disabled and impoverished children. ObamaCare allowed states to expand Medicaid to some low-income Americans above the poverty level, which greatly increased the number of people on Medicaid. In addition, funding for the Medicaid program is currently “open-ended,” meaning funding increases as need increases.

The problem is that these make Medicaid unsustainable. The goal for Medicaid reform in both the House and Senate bills is to rein in the Medicaid program, preserve it for those who really need it, put it on a fiscally sustainable path and reduce its future spending so that it grows more slowly. Reports of Medicaid funding cuts actually refer to reductions in future Medicaid spending. The House bill would slow the growth of Medicaid funding by $834 billion over 10 years; the Senate bill has a similar growth reduction.

Both bills roll back Medicaid expansion, but the Senate bill would do that more slowly than the House bill. The House bill ended extra federal funds for Medicaid expansion in 2020. The Senate bill begins phasing out these enhanced funds starting in 2021 and restores it to pre-ObamaCare levels by 2024.


Both bills would end “open-ended benefits,” instead of providing the states a set amount of money for each person enrolled. This could be either a per capita cap (a certain number of dollars per person) or a block grant of funds (which each state can use however it wishes). While both bills tie the caps to a rate of inflation, the Senate bill uses a lower rate of inflation than the House bill.

In light of these funding changes, states would probably put some limitations on benefits. They would also be allowed to add a work requirement for able-bodied (non-elderly, non-disabled, non-pregnant) Medicaid recipients. Also, under the Senate bill, some of the currently mandated benefits under Medicaid would be made optional.


Premiums and Premium Assistance for Older/Younger Americans

Under ObamaCare, older Americans could only be charged three times more for their insurance premiums than younger people. While that was helpful for older Americans, younger people were subsidizing them by paying more than their actual costs. Because their insurance costs were high, many young people opted not to buy insurance—causing insurers to lose money and eventually pull out of markets.

Both the Senate and House bills would allow insurance companies to charge older people up to five times more than younger people, more accurately reflecting the actual costs of their health care coverage. The Senate bill offers more help to older people who can’t afford insurance while making coverage cheaper for young healthy people, and it hopes to encourage people to voluntarily buy a policy by offering them tax credits to help pay premiums.

Currently, premium assistance (ObamaCare subsidies) is available to those with earnings up to 400% of the poverty level ($48,240). The Senate bill would limit premium assistance to those earning up to 350% of the poverty level ($42,210) through tax credits based on age, income, and geography. The House bill bases tax credits mostly on age.

Under both bills, young adults under age 26 can continue to get insurance through a parent’s plan or they can buy it independently.


Abortion/Planned Parenthood

Both bills ban the use of any federal funds for any health care plan that covers abortion, except in the cases of rape, incest or where the pregnancy puts the mother’s life in danger. They would also defund Planned Parenthood for one year.


Pre-Existing Conditions

Under ObamaCare, insurers were required to cover people with pre-existing conditions with no increase in cost. Under the House plan, states can receive a waiver that would let insurers charge more for some pre-existing conditions but federal money would be available to help those with expensive policies or conditions. Under the Senate plan, insurers are required to cover people with pre-existing conditions without charging them higher rates.


Continuous Coverage

The original Senate bill had dropped the ObamaCare penalty on those who do not have insurance. Experts had warned that canceling the fine would lead to a sicker pool of people with insurance because young and healthy people would not face consequences for failing to purchase insurance. The Senate bill now imposes a six-month waiting period for anyone who lets their health insurance lapse for over 63 days and then wants to re-enroll in a plan in the individual market. The House bill includes a provision also aimed at those who let their insurance lapse for more than 63 days, allowing insurers to charge a 30% penalty over their premium for one year.


Opioid Addiction

$2 billion has been allocated for fighting opioid addiction and helping states with treatment and response. About 30% of all opioid treatment goes through the Medicaid program, and moderates were worried that people would not be able to get treatment for their substance abuse problems. As part of the negotiations, Senator McConnell added an immediate benefit for opioid addiction.

Congressional Budget Office (CBO) Scoring

The CBO report found that, under the Senate bill, 22 million more people would be uninsured by 2026, compared to 23 million more under the House bill. Next year, 15 million more people would be uninsured under the Senate’s measure because Obamacare’s individual mandate that forces a penalty on the uninsured would be eliminated—allowing people who do not want to buy insurance to be able to drop out of the market with no penalty. By 2026, the CBO projects there would be 15 million fewer Medicaid enrollees.

In addition, average premiums for single individuals would rise by 20% in 2018 and 10% in 2019. In 2020, average premiums for single people would be about 30 percent lower than under current law. By 2026, the analysis projects such premiums will be 20 percent lower than under Obamacare.

The Senate bill would also reduce the federal deficit over the next 10 years by $321 billion. The largest savings would stem from cuts in Medicaid spending.

It should be noted that CBO predictions are just that: predictions. They can, and have been, wrong in the past and should not be relied upon as a factual basis.


What’s Next?

As many as ten Senators have said they cannot vote for the current bill. A new Senate bill is expected in the next few days and a vote could come as early as mid-July.

Senate Majority Leader McConnell and his staff are trying to find a balance between conservative Republicans, who want a full repeal of ObamaCare and a replacement that has lower health care costs, and more moderate Republicans who want to preserve its more popular benefits. The Congressional Budget Office is reviewing legislative language, the Senate parliamentarian is reviewing processes, and Republican Senators are still submitting and discussing options that could get them to the 50 votes they need.

The deal-making process is in full swing, with the additions of opioid funding and allowing health savings accounts to be used to pay for insurance premiums. Some Senators are for potentially leaving in some taxes to pay for more generous benefits, after weeks of being criticized by Democrats for offering “tax cuts for the rich and Medicaid cuts for the poor.” Conservatives want to cut more from the regulations and many from Medicaid expansion states are uneasy about future cuts to Medicaid.

Senator Ted Cruz of Texas has offered an amendment called the “Consumer Freedom Option” that would allow insurance companies to sell any health coverage plan they wish as long as they provide one plan that satisfies the “essential benefits” mandates of Obamacare. While the Cruz amendment appeals to conservatives who want to provide consumers with lower cost options, moderates are concerned it could negatively impact those with pre-existing conditions. Supporters have suggested that federal subsidies could help ensure that premiums don’t increase for those who are seriously ill. The CBO is currently scoring this amendment.

President Trump, along with Senator Rand Paul of Kentucky and Senator Ben Sasse of Nebraska, has even offered to repeal ObamaCare now and replacing it later.

Of course, no one is going to get everything they want so there must be compromises. Majority Leader McConnell has said that if the Senate is not able to pass a bill soon, Congress will have to pass a bipartisan measure to shore up the imploding health insurance markets.

And so, the Civics lesson continues. The process is at work. And we at ElderCounsel will be watching every minute so we can keep you informed.


Stay tuned.


category: Elder Counselor (Newsletter)

Elder Counselor Newsletter

A recent report from the Alzheimer’s Association states that one in nine Americans age 65 or older currently have Alzheimer’s. With the baby boomer generation aging and people living longer, that number may nearly triple by 2050. Alzheimer’s, of course, is just one cause of dementia—mini-strokes (TIAs) are also to blame—so the number of those with dementia may actually be higher.

Caring for someone with dementia is more expensive—and care is often needed longer—than for someone who does not have dementia. Because the cost of care in a facility is out of reach for many families, caregivers are often family members who risk their own financial security and health to care for a loved one.

In this issue of The ElderCounselor, we will explore these issues and steps families can take to alleviate some of these burdens.


Cost of Care for the Patient with Dementia—And How to Pay for It

As the disease progresses, so does the level of care the person requires—and so do the costs of that care. Options range from in-home care (starting at $46,332 per year) to adult daycare (starting at $17,676 per year) to assisted living facilities ($43,536 per year) to nursing homes ($82,128 per year for a semi-private room). These are the national average costs in 2016 as provided by Genworth in its most recent study. Costs have risen steadily over the past 13 years since Genworth began tracking them.

Care for a person with dementia can last years, and there are few outside resources to help pay for this kind of care. Health insurance does not cover assisted living or nursing home facilities, or help with activities of daily living (ADL), which include eating, bathing and dressing. Medicare covers some in-home health care and a limited number of days of skilled nursing home care, but not long-term care. Medicaid, which does cover long-term care, was designed for the indigent; the person’s assets must be spent down to almost nothing to qualify. VA benefits for Aid & Attendance will help pay for some care, including assisted living and nursing home facilities, for veterans and their spouses who qualify.

Those who have significant assets can pay as they go. Home equity and retirement savings can also be a source of funds. Long-term care insurance may also be an option, but many people wait until they are not eligible or the cost is prohibitive.

However, for the most part, families are not prepared to pay these extraordinary costs, especially if they go on for years. As a result, family members are often required to provide the care for as long as possible.


Financial Costs for the Family

Women routinely serve as caregivers for spouses, parents, in-laws and friends. While some men do serve as caregivers, women spend approximately 50% more time caregiving than men.

The financial impact on women caregivers is substantial. In another Genworth study, Beyond Dollars 2015, more than 60% of the women surveyed reported they pay for care with their own savings and retirement funds. These expenses include household expenses, personal items, transportation services, informal caregivers and long-term care facilities. Almost half report having to reduce their own quality of living in order to pay for the care.

In addition, absences, reduced hours and chronic tardiness can mean a significant reduction in a caregiver’s pay. 77% of those surveyed missed time from work in order to provide care for a loved one, with an average of seven hours missed per week. About one-third of caregivers provide 30 or more hours of care per week, and half of those estimate they lost around one-third of their income. More than half had to work fewer hours, felt their career was negatively affected and had to leave their job as the result of a long-term care situation.

Caregivers who lose income also lose retirement benefits and social security benefits. They may be sacrificing their children’s college funds and their own retirement. Other family members who contribute to the costs of care may also see their standard of living and savings reduced.


Emotional and Physical Costs to Caregivers

In addition to the financial costs, caregivers report increased stress, anxiety and depression. The Genworth study found that while a high percentage of caregivers have some positive feelings about providing care for their loved one, almost half also experienced depression, mood swings and resentment, and admitted the event negatively affected their personal health and well-being. About a third reported an extremely high level of stress and said their relationships with their family and spouse were affected. More than half did not feel qualified to provide physical care and worried about the lack of time for themselves and their families.

Providing care to someone with dementia increases the levels of distress and depression higher than caring for someone without dementia. People with dementia may wander, become aggressive and often no longer recognize family members, even those caring for them. Caregivers can become exhausted physically and emotionally, and the patient may simply become too much for them to handle, especially when the caregiver is an older person providing care for his/her ill spouse. This can lead to feelings of failure and guilt. In addition, these caregivers often have high blood pressure, an increased risk of developing hypertension, spend less time on preventative care and have a higher risk of developing coronary heart disease.


What can be done?

Planning is important. Challenges that caregivers face include finding relief from the emotional stress associated with providing care for a loved one, planning to cover the responsibilities that could jeopardize the caregiver’s job or career, and easing financial pressures that strain a family’s budget. Having options—additional caregivers, alternate sources of funds, respite care for the caregiver—can help relieve many of these stresses. In addition, there are a number of legal options to help families protect hard-earned assets from the rising costs of long term care, and to access funds to help pay for that care.

The best way to have those options when they are needed is to plan ahead, but most people don’t. According to the Genworth survey, the top reasons people fail to plan are they didn’t want to admit care was needed; the timing of the long-term care need was unforeseen or unexpected; they didn’t want to talk about it; they thought they had more time; and they hoped the issue would resolve itself.

Waiting too late to plan for the need for long-term care, especially for dementia, can throw a family into confusion about what Mom or Dad would want, what options are available, what resources can help pay for care and who is best-suited to help provide hands-on care, if needed. Having the courage to discuss the possibility of incapacity and/or dementia before it happens can go a long way toward being prepared should that time come.

Watch for early signs of dementia. The Alzheimer’s Association ( has prepared a list of signs and symptoms that can help individuals and family members recognize the beginnings of dementia. Early diagnosis provides the best opportunities for treatment, support and planning for the future. Some medications can slow the progress of the disease, and new discoveries are being made every year.

Take good care of the caregiver. Caregivers need support and time off to take care of themselves. Arrange for relief from outside caregivers or other family members. All will benefit from joining a caregiver support group to share questions and frustrations, and learn how other caregivers are coping. Caregivers need to determine what they need to maintain their stamina, energy and positive outlook. That may include regular exercise (a yoga class, golf, walk or run), a weekly Bible study, an outing with friends, or time to read or simply watch TV.

If the main caregiver currently works outside the home, they can inquire about resources that might be available. Depending on how long they expect to be caring for the person, they may be able to work on a flex time schedule or from home. Consider whether other family members can provide compensation to the one who will be the main caregiver.

Seek assistance. Find out what resources might be available. A local Elder Law attorney can prepare necessary legal documents, help maximize income, retirement savings and long-time care insurance, and apply for VA or Medicaid benefits. He or she will also be familiar with various living communities in the area and in-home care agencies.



Caring for a loved one with dementia is more demanding and more expensive for a longer time than caring for a loved one without dementia. It requires the entire family to come together to discuss and explore all options so that the burden of providing care is shared by all.

We help families who may need long term care by creating an asset protection plan that will provide peace of mind to all. If we can be of assistance, please don’t hesitate to call.



category: Elder Counselor (Newsletter)

Elder Counselor Newsletter

Donald Trump’s election and Republican majorities in both houses of Congress surprised much of the nation. With control of legislative and executive branches of government, the expectation is Republicans will finally be able to push through long-awaited legislation, as well as follow through on promises made by candidate Trump. And they are expected to move quickly.

This issue of ElderCounselor summarizes some key issues to watch out for in 2017 that affect seniors and persons with disabilities.


What the Election Outcome Means in Congress

The House has remained in Republican control—about 45% Democrat and 55% Republican. The majority rules, so while the Democrats may have loud opposition, they don’t have a lot of power. Currently, Republicans are mostly united, but those in the Freedom Caucus (Tea Party Republicans) are deciding how they will interact with the Republican establishment. If they split, votes may be needed from Democrats to pass legislation.

The Senate is 48 Democrats and 52 Republicans. 60 votes are needed to prevent a filibuster (where senators can talk for hours and delay votes). But with budget reconciliation, only a simple majority (51) is needed to pass legislation in the Senate. Because they are all budget-related programs, the Republicans will try to reform Medicaid, Medicare and the Affordable Care Act (Obamacare) through budget reconciliation. Individual Republican senators will have a lot of power, as some may insist on additions or deletions to secure their vote. If the Republicans do not stick together for the majority, votes may be needed from Democrats. (Note: Budget reconciliation was used to pass the Deficit Reduction Act of 2005 and OBRA 93, which enacted big cuts that changed elder law—the lengthening of the transfer penalty, the change in the time of when that penalty applies, the move from trust.)

One thing to watch is who is going to run Health and Human Services (HHS), Centers for Medicare and Medicaid Services (CMS) and the Social Security Administration, especially considering how much is related to Supplemental Security Income (SSI). The people now in charge of staffing these agencies are conservative. For example, the person in charge of staffing the political positions at the Social Security

Administration has called for privatizing Social Security in the past. Donald Trump has repeatedly said he doesn’t want to change Medicare and Social Security, but that may be changing. (See below.)


Tax Policy

Tax changes are expected as part of the budget reconciliation process. We are not sure yet if 2017 will bring major tax reform or just tax cuts, but tax rates are expected to decrease for both individuals and businesses. Candidate Trump called for elder care and child care tax deductions and/or credits. He has also stated his plan to eliminate the federal estate tax, then charge capital gains tax on everything over $10 million, with exemptions for family farms and small businesses.

We may also see some changes to the ABLE Act (Achieving a Better Life Experience), which passed in December 2014 and amended Section 529 Plans. Currently, ABLE allows people with disabilities developed before the age of 26 and their families to set up tax-exempt savings accounts, which can be used to cover qualified disability expenses such as, but not limited to, education, housing and transportation. Revisions in 2017 may raise the age to 46, allow those working to put in more money, and allow rollovers of these accounts.


Medicare Reform

President-elect Trump started by saying he was going to protect Medicare and Social Security. After meeting with House Speaker Paul Ryan, he said he will modernize Medicare. Reince Priebus, incoming chief of staff, recently insisted that Mr. Trump won’t meddle with Medicare or Social Security. Instead, he has said he will focus on 1) improving the economy, which will reduce the debt and ease entitlement concerns and 2) save Medicaid, Medicare and Social Security without cuts while eliminating fraud, waste and abuse.

But he is already encountering resistance from Republicans, who for years have claimed that a major overhaul to Medicare and other entitlements are needed to ensure they don’t go bankrupt; that entitlement reform is critical to reducing debt; and the longer they wait, the harder it becomes to solve the problems. Obama administration officials warned just last year that a central Medicare trust fund is projected to run out of money by 2028.

Yet Republicans are also encouraged by what some of the President-Elect’s Cabinet picks could mean for future entitlement reform. Representative Tom Price (R-GA), who replaced Paul Ryan as Budget chairman and sought to overhaul entitlement programs, is Trump’s pick for Health and Human Services secretary. Representative Mick Mulvaney (R-SC), a fiscal hawk and Freedom Caucus co-founder, will lead his White House budget office.

So, we will have to wait and see if President-elect Trump, his Cabinet members and leading Republicans will find a way to agree. Some reforming of Medicare may be part of the 2017 budget reconciliation, but with ObamaCare repeal and replace, tax reform and infrastructure as the immediate priorities, solving the decades-long problem of deficits in Medicare and Social Security will likely have to wait until after 2017.

In the meantime, we are seeing a tilt toward Medicare Advantage plans. These managed care plans (offered through HMOs) often have lower costs and provide benefits not covered by traditional Medicare and Medicare Supplement Plans, such as health club memberships and preventative educational programs for those with diabetes and other chronic diseases.

A long-term goal for Medicare, which has been around since its founding in 1964, is premium support. Basically, the consumer would choose a plan from those offered through an exchange. The government would provide subsidies to companies, they would lower the premiums and then people would choose their plans. It’s not likely that this will replace Medicare as we know it, but it is an idea being discussed.


Medicaid Reform

President-elect Trump has called for block granting Medicaid. House Speaker Paul Ryan has called for it, too, and Republicans are looking at whether they can reform Medicaid through budget reconciliation.

Those who want to reform Medicaid are focusing on the FMAP, the federal percentage match that states receive through federal funding. This is based on per capita income of the state. For example, a rich state like New Jersey is a 1:1 ratio, while a poor state like Mississippi is about a 3:1 ratio. This means for every one dollar that Mississippi spends on Medicaid, they will receive three free extra dollars from the federal government. This can impact states’ budget decisions. For example, if the governor of Mississippi needs to cut costs, he will more likely cut education or infrastructure by one dollar, rather than cut Medicaid spending by one dollar and lose the three free extra dollars.

The idea of block grants has been around for about 30 years. They are attractive because there are fewer federal rules to comply with and the states can use the money however they wish. But block grants shift more costs onto the states, and governors tend to oppose that.

Another idea floating around is a per capita cap, which would give the states a fixed dollar amount per individual, based on Medicaid standard lines (the blind, aged, and disabled children and adults). It was first proposed by President Clinton, who also wanted block grants. A per capita cap may force the states to control Medicaid costs over time, but there is also a demographic shift to consider—the medical needs and costs for an 85-year-old are much greater than for a 65-year-old. Nursing homes and aging disability provider groups have a huge stake in this and would likely oppose it, as would some governors.

The cost changes may not be felt right away, but they will be noticeable ten years from now and that’s what Congress must plan for. There may be increased waiver flexibility for the states and provider taxes to offset states’ losses. We may also see reforms to make it easier to manage care.


Affordable Care Act

Republicans are already moving to repeal and replace Obamacare. The question is: How much will be repealed? There are several programs included in the ACA, not related to traditional health insurance, that are important to elder law attorneys and their clients. For example, Medicaid expansion, a kind of Medicaid reform, is part of the ACA.

The ACA also includes programs that work toward ending the institutional bias in Medicaid. One is Community First Choice, a state plan that provides home- and community-based services. Currently it has an extremely low-income threshold so it’s a limited population, but it’s a start.

Another is Money Follows the Person, which pays for transition services. For example, it could provide extra funds to help someone leave a nursing home, by paying for a housing coordinator to find an apartment, a roommate, buy basic furniture and so on.

We are moving toward home- and community-based service, which many people favor. How will that interact with Medicaid reforms? Because they are optional, some fear that with per capita caps, these services will be among the first to go. There may be more opportunities to expand these services through block grants because they allow more flexibility in what is offered. Along this line, Senator Chuck Schumer (D-NY) has introduced a bill called the Disability Integration Act, which would make home- and community-based services a civil right.


Other Medicaid-Related Issues to Watch

Limiting home equity: This proposal, H.R. 1361, would take away the state option to expand the cap for single individual home owners. It would not impact people who have a community spouse living in the home or if you have a disabled child or a dependent under 21. New York and New Jersey have already implemented the home equity limit. California has not.

Medical liability reform: This could impact whether individuals get adequate access to personal injury settlements and funds that can be put into a special needs trust.


Long-Term Care Reform

There has been a lot of discussion on Capitol Hill about picking up the pieces on long-term care. After a decade, the market has completely collapsed. John Hancock just withdrew, and Genworth was bought out by a Chinese private equity firm. Republicans and Democrats agree on the problem, but there doesn’t seem to be common ground yet on a solution. The Senate Aging Committee is starting the process, which is a positive step. There are calls for catastrophic coverage, at least on the back end, and probably some sort of front-end coverage for two or three years. There may be some long-term care reform as part of Medicaid reform.


VA Benefit Rules

The new rules have been delayed again until at least April, 2017. Fixing the VA is a Trump priority. An important piece to what will happen with the VA is who Trump names to head the VA and Veterans Benefit Administration (VBA).


Nursing home binding arbitration rules

Nursing homes must comply with binding arbitration rules to have access to Medicare or Medicaid funds. NAELA has been working with others to push CMS to ban pre-dispute binding arbitration. The for-profit nursing home industry association is fighting it and recently won a preliminary injunction in a Mississippi district court (American Health Care Association et al v. Burwell). We do not yet know if the Trump Administration will appeal this ruling and continue with banning binding arbitration for nursing home contracts.

In Kindred Nursing Centers Limited Partnership v. Clark in Kentucky, the issue is whether federal arbitration acts overrule the state’s arbitration acts. The state of Kentucky has a law that says in order to waive the principal’s constitutional right to a jury trial, the agent must be given that specific authority within the power of attorney. Whether this is overturned is likely to hinge on President Trump’s pick to fill Justice Scalia’s vacancy on the Supreme Court.



There are a number of issues that will be addressed in 2017 that can have significant impact on seniors and their loved ones, Veterans, and persons with disabilities. If you have questions or would like to discuss any of the issues raised here, please don’t hesitate to contact us.

category: Elder Counselor (Newsletter)

Elder Counselor Newsletter

There are often situations in which an older person needs the services of an attorney and medical professionals. A recent article in Bifocal, a publication of the American Bar Association, highlighted six scenarios in which such a collaboration would be beneficial to the older patient-client’s well-being, as well as the professionals. This issue of ElderCounselor will summarize these situations.


Decisional Capacity Issues
When provided with adequate information, most older individuals retain sufficient cognitive and emotional ability to make autonomous, valid decisions about important aspects of their own lives. Sometimes, however, an older person’s capacity to make and express valid choices about personal (including medical or residential) or financial matters is questionable and/or questioned by others.

Working Together
The elder law attorney needs involvement from medical professionals to help recognize when decisional capacity may be compromised and to quantify the existence, degree and reversibility or alterability (for example, through medication management) of decisional impairment. The physician and other medical professionals could benefit by working with an elder law attorney who can identify and accurately describe the potential legal implications of the person’s decisional impairment. The attorney can then evaluate possible interventions such as guardianship, supported decision-making arrangements or reliance on previously created or implied advance directives or other instructions.


Elder Mistreatment
Many older individuals, especially those with cognitive decline, are at risk of physical, psychological and financial mistreatment at the hands of family members and others. In addition to abuse and exploitation, elder mistreatment may occur in the form of neglect, often occurring in the older person’s home or that of a relative with whom the older victim resides.

Compounding the problem is the reluctance of many older persons to cooperate in reporting and investigating their own mistreatment. They may accept physical or emotional abuse, financial exploitation or neglect of basic needs like hygiene or medications by a family member out of fear that making a report might result in being removed from the home and placed in a nursing home.

Working Together
Medical professionals are generally the first to recognize, evaluate and medically treat signs and symptoms of elder neglect, exploitation or abuse. Their input is essential in considering and effecting legally permissible options or required actions. Health care professionals often have a responsibility to monitor the quality and safety of home care provided by family caregivers or others, and a duty to report instances of suspected abuse to authorities. An elder law attorney can help both the medical professionals and the older patient/client by providing legal advice pertaining to the professionals’ responsibilities to report, confidentiality considerations, legal ramifications of failing to report, and legal immunities attached to reporting or other interventions.


A significant percentage of older adults, mainly living alone, do not regularly attend to their own needs or well-being when it comes to health care, hygiene, nutrition and other matters. The majority of cases reported to Adult Protective Services (APS) by health and social service professionals and family members are triggered by suspected self-neglect, and the health care system expends considerable efforts trying to intervene in these situations to prevent increased rates of hospitalization, nursing home placement and even death.

Working Together
In these situations, the medical professional’s role is vital in determining the potential problem, nature and seriousness of the risk, and identifying viable intervention strategies. Decisional capacity issues (addressed above) almost always arise in these cases. An attorney can advise the medical professional about legal reporting requirements or options, as well as legal boundaries for interventions that can be designed and conducted in a way that best respects the older person’s dignity and autonomy while still protecting the person from foreseeable and preventable self-generated harm.


Medical Payment Issues
When attaining appropriate medical and rehabilitative care for older patients, it is imperative to make sure that payment for needed services will be available. For most people age 65 and over, this means working with not only Medicare but potentially with state-specific Medicaid programs and/or private insurance companies.

One common problem concerns older patients who have entered hospitals through emergency departments and held for observation, instead of being admitted as in-patients, before being transferred to nursing facilities. This practice, as well as hospital discharge and readmission practices, may jeopardize coverage for subsequent rehabilitation services. Other issues may involve the interpretation and application of Medicare rehabilitation payment policy regarding the standard of need for services instead of continuing potential for benefit. There are also issues with coordinating benefits under Medicare with services covered concurrently in whole or in part by other third-party payers.

Working Together
The elder law attorney trying to obtain payment for the older patient’s medical care or rehabilitative care needs assistance from the patient’s medical professionals in order to document, clarify and argue questions about the older person’s medical condition, needs and prognosis. Conversely, the medical professional may need assistance from an elder law attorney to assert and advocate for the rights of the older person.


Family Issues
Families often act as caregivers, sometimes paid but more often as volunteers, for older relatives who are not fully independent. Family members may also be acting as surrogate decision makers for those with reduced decisional capacity, making choices on behalf of the older person, or as helpers to a person who is capable of making decisions with support. In cases of self-neglect, the family may find an older loved one who refuses to acknowledge mental decline and the need for help. And sometimes, families have interests that conflict with those of an older person and seek to put their own interests first, to the detriment of the vulnerable older person.

Working Together
Medical professionals are important in recognizing when the caregiver’s burden is at risk of endangering both the caregiver and the person dependent on their caring. An elder law attorney can inform all parties about public or private sources of financial and other support for family caregivers, including benefits under the federal Family and Medical Leave Act and state counterparts.

For medical decision making, whether for surrogate decision makers when the person has reduced decisional capacity or for those who help the older person make decisions, medical professionals provide information, recommendations and support in the process. An elder law attorney may work with individuals who are currently capable of decision-making and their families in the advance health care planning process. The attorney may also clarify for medical professionals the legal authority of surrogate decision makers. The attorney and medical professionals may also work together to present cases to an ethics committee or consultant when there are serious disagreements among family members, or to act as a mediator and/or patient advocate when there are disagreements about the patient’s best interests.

In cases of self-neglect, the attorney and medical professionals working together can often recommend options that will benefit both the family and the loved one.

When a family is acting on its own interests to the detriment of the older person, a medical professional will usually be the one to notify the individual’s attorney of the conflict. The attorney may initiate or threaten legal action to protect the rights and welfare of the older person in a way that also protects the ethical and legal interests of the medical professional.



Medical professionals and attorneys have concerns about the permissible handling of personal information they learn about a particular older patient/client solely as a result of the formal relationship between professional and patient/client. For example, a medical professional may wonder about the confidentiality ramifications of his/her suspicions that an older patient is being neglected, exploited or abused.

Working Together
A medical professional can educate the attorney about the health care information collected on an individual patient, how and where the information is documented and stored, how to interpret it, clinical uses to which it is applied, and who has access to the information. The attorney can educate and counsel the medical professional about legal parameters of information collection, maintenance and sharing under common law confidentiality principles, state statutes and regulations, the federal Health Insurance Portability and Accountability Act (HIPAA) and other legal provisions. The attorney can also explain different expectations and rules for protecting patient privacy as they apply to members of different professions. For example, a social worker employed as staff in an elder law office who suspects elder mistreatment may be subject to reporting requirements while the attorney is not.

Inter-professional communication about confidentiality can also be beneficial to the older patient/client. Accurately informed medical professionals and attorneys are well-positioned to protect the autonomy and privacy interests of older persons to whom they owe fiduciary duties, while at the same time allowing the sharing of relevant information to authorized recipients so that services for the older person can be maximized.


There are, of course, other situations when it is advisable and beneficial for medical professionals and elder law attorneys to work together for the safety and well-being of their older patients/clients. For example, it might be necessary to manage a situation involving unsafe driving by an older person who resists voluntarily restricting personal use of an automobile.

Generally speaking, elder law attorneys and the medical professionals who care for older patients/clients often have a genuine calling to work with the elderly. And when the professionals work together to serve their older patients/clients, everyone benefits. If you know of someone who could benefit from the advice of an elder law attorney, please contact us. We are ready to help.


category: Elder Counselor (Newsletter)

According to a recent study, elderly drivers who stop driving and have no transportation alternatives become less socially active and risk isolation. This can lead to a decline in both physical and mental health.

Teja Pristavec, a sociology researcher at Rutgers University in New Brunswick, NJ, sought to determine the effect of driving mobility on the social participation of older Americans. Her results were published online in May 2016 in The Journals of Gerontology Series B: Psychological Sciences and Social Sciences (available here).

Pristavec defines driving mobility as a combination of being able to drive oneself and receiving rides. She looked at driving habits and social activities of more than 4,300 adults over age 65, using survey data collected in 2011 and 2013 by the National Health and Aging Trends Study (

Compared to seniors who had stopped driving, she found that frequent drivers are more than three times more likely to visit friends and family, and almost three times as likely to participate in social outings like going to the movies. They were also more than twice as likely to attend religious services or organized group activities. But when they lost the ability to drive and had no transportation alternatives, their participation in social activities declined to the same level as those who never drove at all. A decrease in driving frequency, from frequent driving to occasional driving to not driving, lowers social participation.


Benefits of Social Participation for Seniors

Pristovec notes that with a longer life expectancy, older adults can remain socially engaged in later years. Those who do so report being in better health, experience lower mortality risk over time, and have lower rates of depression, dementia and other cognitive impairments. Social participation is also linked to greater life satisfaction, self-esteem and positive effect. For these reasons, maintaining participation in social, economic, cultural, spiritual and civic affairs is part of healthy, active and successful aging.


Fewer Older Drivers

Driving is a way of life in the U.S. and is often crucial for social participation and having access to services. Approximately 85% of individuals 60 years and older currently drive, but the proportion of those still driving decreases with age. In 2011, 93% of adults age 60-69 held a driver’s license, compared with 60% of those age 85 or older. With life expectancy increasing, the number of years older adults spend not being able to drive is also lengthening. Pristovec notes that at 70 years, men have a total life expectancy of 18 years, but a driving life expectancy of 11 years, resulting in a gap of seven years. For women, the gap is about ten years. In a time of their lives when they could still be active social participants, older adults are likely to experience limited driving mobility.

Physical and mental decline in later years eventually lead to a decision to reduce and cease driving. In the U.S., over 600,000 older individuals stop driving every year and must rely on other transportation.


Limited Driving Leads to Cessation

Most older adults start ceasing to drive by limiting their driving behaviors. They drive less frequently, shorter distances and to fewer destinations, adapt speed, and restrict trips to familiar roads and particular hours. How long they can continue to drive, even occasionally, will likely depend on their confidence, capabilities, and whether they live in a city or rural area. A smaller town usually means less traffic and a slower pace, making it safer for a senior to drive more slowly and cautiously. City driving, of course, is stressful for persons of all ages.

Some need a little help in making the decision to stop driving, and family members can watch for signs. For example, the driver may start making all right turns in order to avoid turning left at an intersection, or insist on having a navigator so he or she can concentrate solely on driving. A driver who becomes disoriented or has trouble following directions may also need to be discouraged from driving. At some point, it becomes a safety issue—both for the senior and for the public at large.


Social Activities Become Limited

Physical changes and health issues in later life may not only affect the ability to drive, but can also restrict the range of activities in which seniors can participate. Many also find their savings have to stretch farther than they anticipated. As their health, finances, and social contacts decline, they often choose to focus on fewer select activities instead of maintaining their previous participation levels. They may engage in one or two activities they find most rewarding, require fewer resources, or are nearby. Attending religious services, or visiting family and friends, often become more important than going to the movies, out to dinner, and other outings simply for enjoyment.

In short, even if they don’t drive, seniors will try to find ways to continue participating in activities they value and cut back on those they deem less important. Social activities may just become too difficult and too expensive, and therefore less enjoyable.

For many seniors, religious services remain a high priority in their lives. Research has shown that religious involvement remains stable until the end of life, and there are known health and well-being benefits of religious participation. Pristovec found that those with higher self-driving mobility (including occasional drivers) are more likely to attend religious services than those who ceased driving and those with lower self-driving mobility. For those non-driving seniors who value religious services, efforts should be made to find rides so they can continue participating


Receiving Rides Can Help Prolong Social Participation

Receiving rides, a component of driving mobility, is a crucial alternative transportation option for older adults as their own ability to drive declines. Pristovec found that providing regular rides is likely to prolong social participation into later life. Family members, friends and caregivers are often best able to provide flexible, supportive, door-to-door service, with escort assistance that best meets the older individual’s changing needs.

Unfortunately, many older individuals do not have children living nearby, and a smaller social network may mean fewer people are willing or able to provide rides. Family and friends may also be reluctant to assist due to limited time, money, and competing work or other family obligations.

Further, seniors are often hesitant to ask for rides because they fear being a burden to others. When they do ask for help, they tend to request rides for basic needs, like doctor visits and grocery shopping, not for social activities.


Public Transportation

Those who live in metropolitan areas may have public transportation options, including buses, taxis, and Uber or Lyft. Some areas provide transportation specifically for seniors, such as community buses and mini-buses on fixed, circular routes; Dial-A-Ride services; point-to-point services for those with disabilities; and volunteer drivers. Many are provided at low senior rates. Some neighborhood senior community centers provide free transportation and a mid-day meal.

However, public and community transportation are often unsuitable for older individuals due to limited schedules during non-peak times, limited service to nonwork destinations, poor accessibility, low availability, inadequately trained drivers and limited personal assistance. Additionally, many seniors and their families are simply not aware these options exist.


Senior Living Centers

Social interaction can also be provided in community living centers, whether for active seniors or for those requiring some assistance with daily living activities. Most provide field trips and outings, in addition to on-site activities and community dining. These can be a good, albeit often costly, choice to encourage social participation if transportation options are limited.



Keeping seniors socially engaged is vital to their physical and mental well-being in later years. Pristovec’s study illuminates the need for seniors to have transportation options when their driving abilities lessen and cease, pointing to the need for developing transportation alternatives that are accessible and non-stigmatizing. These options could facilitate continued participation without older adults feeling burdensome or risking their safety (and the safety of others) with prolonged self-driving.

We specialize in assisting with legal issues that affect seniors and their loved ones.  If you or someone you know would like to learn more, please don’t hesitate to contact us.

About The National Health and Aging Trends Study

Pristavec based her findings on survey data provided by the National Health and Aging Trends Study (, a new resource for the scientific study of functioning in later life. The study is being conducted by the Johns Hopkins University Bloomberg School of Public Health, with data collection by Westat and support from the National Institute on Aging. In design and content, NHATS is intended to foster research that will guide efforts to reduce disability, maximize health and independent functioning, and enhance quality of life at older ages.

Starting in 2011, NHATS has been gathering information on a nationally representative sample of Medicare beneficiaries ages 65 and older. In-person interviews collect detailed information on activities of daily life, living arrangements, economic status and well-being, aspects of early life, and quality of life. Among the specific content areas included are: the general and technological environment of the home, health conditions, work status and participation in valued activities, mobility and use of assistive devices, cognitive functioning, and help provided with daily activities (self-care, household, and medical).

Study participants are re-interviewed every year in order to compile a record of change over time. The content and questions included in NHATS were developed by a multidisciplinary team of researchers from the fields of demography, geriatric medicine, epidemiology, health services research, economics, and gerontology.

As the population ages, NHATS will provide the basis for understanding trends in late-life functioning, how these differ for various population subgroups, and the economic and social consequences of aging and disability for individuals, families, and society.


category: Elder Counselor (Newsletter)

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