Elder Living, Healthcare

Termination of Home-Health Care Services Is Becoming More Common

Many Americans are getting their Medicare benefits cut as home health providers, including occupational, speech, and physical therapists, social services, as well as skilled nurses are saying: “Your husband (or whomever) is not going to get better, so we will have to discontinue our services as Medicare will not pay for it.”  Termination of care is swift, often within 48 hours of delivering the message, and the home health care chores fall to the family system or must be paid for out of family funds. So what changed?

PDGM Figure 1

Significant changes began on January 1, 2020, as to how Medicare pays for home health services. Medicare has altered its billing approach from a therapy delivered model (the more therapy you receive, the higher the payments billed to Medicare) and changed it into a reimbursement system known as the Patient-Driven Groupings Model, or PDGM. Medicare Advantage plans have separate rules and are not affected.

The Centers for Medicare and Medicaid Services (CMS) provide Figure 1 as an example of how a 30 day period becomes categorized into 432 case-mixed groups for adjusting payment purchases in the PDGM. These 30 day periods are further broken into the following subgroups: admission sources and timing, twelve clinical principal diagnosis subgroups, three functional impairment levels, and three levels of co-morbidity adjustments. During the 30 days, there is only an allowance for one chosen category under the larger color-coded categories. CMS deems this newer approach to be more holistic regarding patient need assessments.

In 2017, the most recent year for which the data is available, for-profit US home health care agencies (approximately 12,000) provided care to 3.4 million Medicare beneficiaries. Home health rates charged were based on the amount of therapy delivered. The more therapy a patient received, the higher the payout to the agency. Due to the change in payment structure, these agencies are cutting back on therapies provided and even reducing the number of therapists employed. They can’t bill enough to Medicare to remain profitable. These new payment conditions are based on a patient’s underlying diagnosis and other case-specific complicating medical factors. As a result, home health care agencies now have a stronger financial incentive to meet the needs of short-term therapy, post-hospital or rehab facility, as well as caring for patients requiring nursing care for complex situations like post-surgical wounds.

CMS believes this new way to assess payments will strike a balance between costs, efficiencies, needs, and outcomes. The members of the National Association for Home Care and Hospice (NAHC) disagree. Data culled by NAHC from home health agencies indicate there will be a substantial reduction of therapy services offered as a result of the PDGM. William Dombi, the association’s president, states that the cuts “may not be a good move” because medically, patients may deteriorate more rapidly without therapy and seek aid in emergency rooms or hospitals.  He also notes the possibility that if more patients end up worse off and go to emergency rooms or hospitals, that this will reflect poorly on home health agencies and can affect their referrals.

Providing the right patient therapy at the right time by home health care agencies is critical to positive patient outcomes. CMS has done extensive analysis of historical data and, through the use of artificial intelligence tools, feel they can better predict what kind of services and how often a patient will need them through the PDGM. Clarifications are being posted online by CMS that deal with early errors in the program and the ensuing turmoil of therapy provision for patients within the new guidelines. It is the hope that more reviews and revisions to the PDGM will strike a better balance between cost and efficiency, patient therapy needs, and outcomes.

Understanding the role Medicare will play when it comes to long term care services can be confusing. We help families plan for the possibility of needing long term care, and how it could be paid for without causing the family to spend everything they have. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact us. Please contact our Reno office by calling us at (775) 853-5700.

Estate Planning, Healthcare

Your Health Care Power of Attorney State Your Final Health Care Decisions

If you are unable to make decisions for yourself, you can give this legal authority to someone else through a Health Care Power of Attorney, also called a Health Care Proxy or Durable Power of Attorney for Health Care. This prevents the courts from getting involved if there is a disagreement between family members and/or the medical community as to what actions you would want to be taken.

Keep in mind that you will continue to make decisions about your care for as long as you are able. You are only naming someone as a successor, to step in and act for you when you cannot. This document can be valuable even for short periods of time, such as if you are recovering from surgery.

But it is more associated with end-of-life decisions. The person you name as your agent or proxy may make decisions that will extend your life for as long as possible or bring your earthly life to an end. These decisions may include whether or not you should have surgery if life support should be initiated, and/or if nutrition should be stopped. The legal document includes your wishes on these and other end-of-life issues.

This is a difficult subject for some people to even think about, but it is important that you do, and that you discuss these matters with your physician, family members, and friends. The more people who know about your preferences, the easier it will be for your agent/proxy to carry out your instructions. Of course, you might change your mind over time, so let others (especially your agent/proxy) know what you are thinking.

Whom should you name as your agent/proxy? Here are some considerations:

  • Most people name a family member, but you can also name a trusted friend.
  • It should be someone who knows you well, respects your wishes, and will follow your instructions.
  • It might bring you some comfort if this person shares your values about faith, life, and death.
  • You should name more than one person in case your first choice is unable to act. But list them in the order you want them to serve. This would give your agent/proxy others with whom to consult and discuss options, but you want one person (not a committee) making the final decisions.
  • Consider your candidates’ personalities and emotional makeup, and whether they would be able to handle the responsibility.

If you have been asked to be someone’s agent/proxy, consider carefully if you would be able to follow his/her wishes when that time comes. Most people consider it an honor to be asked, knowing this person has chosen you to have his or her life in your hands. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact us. Please contact our Reno office by calling us at (775) 853-5700.

Elder Law, Estate Planning, Healthcare

The Importance of Clear End-of-Life Care Instructions

You would hope your living will is properly prepared and your resuscitation instructions or DNR (do not resuscitate) are in order. While your wishes in a living will may be appropriately documented, that does not guarantee the instructions will be carried out as you stated. The frightening truth is that mistakes about your end-of-life instructions are made while you are at your most vulnerable. Dr. Monica Williams-Murphy, medical director of advance-care planning and end-of-life education for Huntsville Hospital Health System in Alabama has said, “Unfortunately, misunderstandings involving documents meant to guide end-of-life decision-making are surprisingly common.”

The underlying problem is that doctors and nurses have little if any training at all in understanding and interpreting living wills, DNR orders, and Physician Orders for Life-Sustaining Treatment (POLST) forms. Couple the medical professionals’ lack of training with communication breakdowns in high-stress environments like a hospital emergency ward where life and death decisions are often made within minutes, and you have scenarios that can lead to disastrous consequences.

In some instances, mix-ups in end-of-life document interpretation have seen doctors resuscitate patients that do not wish to be. In other cases, medical personnel may not revive a patient when there is the instruction to do so resulting in their death. Still other cases of “near misses” occur where problems were identified and corrected before there was a chance to cause permanent harm. 

There are some frightening worst-case scenarios, yet you are still better off with legal end-of-life documents than without them. It is imperative to understand the differences between them and at what point in your life you may change your choices based on your age or overall health. To understand all of the options available it’s important to meet with trusted counsel for document preparation and to review your documented decisions often as you age. In particular, have discussions with your physician and your appointed medical decision-maker about your end-of-life documents and reiterate what your expectations are. These discussions bring about an understanding of your choices before you may have an unforeseen adverse health event, and provides you with the best advocates while you are unable to speak for yourself.

There are several documents that may be appropriate as part of your overall plan. Each of those is discussed below, and we are available to answer any questions you may have about them.

A living will is a document that allows you to express your wishes about your end-of-life care. For example, you can document whether you want to be given food and hydration to be kept comfortable, or whether you want to be kept alive by artificial means.

A living will is not a binding medical order and thus will allow medical staff to interpret the document based on the situation at hand. Input from your family and your designated living will appointee are also taken into account in your best decision-making strategy while you are incapacitated. A living will become activated when a person is terminally ill and unconscious or in a permanent vegetative state. Terminal illness is defined as an illness from which a person is not expected to recover even though they are receiving treatment. If your illness can be treated this would be regarded as a critical but not terminal illness and would not activate the terms of your living will.

Do not resuscitate orders (DNRs) are binding medical orders that are signed by a physician. This order has a specific application to cardiopulmonary resuscitation (CPR) and directs medical professionals to either administer chest compression techniques or not in the event you stop breathing or your heart stops beating. While your living will may express a preference regarding CPR it is not the same thing as a DNR order. A DNR order is specifically for a person who has gone into cardiac arrest and has no application to other medical assistance such as mechanical ventilation, defibrillation, intubation, medical testing, intravenous antibiotic, or other medical treatments. Unfortunately, many DNR orders are wrongly interpreted by medical professionals to mean not to treat at all.

Physician orders for life-sustaining treatment forms (POLST forms) are specific sets of medical orders for a seriously ill or frail patient who may not survive a year. This form must be signed by a physician, physician assistant, or nurse practitioner to be legally binding. The form will vary from state to state and of the three instructive documents the POLST is the most detailed about a patient’s prognosis, goals, and values, as well as the potential benefits and risks various treatment options may bring about.

A power of attorney for a health care decision, sometimes referred to as a health care directive, allows you to name an agent to make decisions for you if you are unable to. Unlike a living will which only covers end-of-life decisions, a power of attorney for health care decisions allows the agent to act at any time that you cannot make decisions for yourself.

We can help you determine which documents best suit your current needs, and help you clearly state your wishes in those documents. We look forward to hearing from you and helping you with these important planning steps. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact us. Please contact our Reno office by calling us at (775) 853-5700.

Estate Planning, Healthcare

Considerations for Choosing Co-Agents

I have to decide between my two children, who should be my power of attorney when I need help communicating with doctors and handling my financial matters. Can’t I just name them both?

You can, but please don’t. You risk creating conflict or chaos if you name more than one child to serve simultaneously. Instead, pick one child at a time.

What to Consider When Deciding Your Health Care Agent

Think about which child is better suited to the responsibilities. For health care decision-making, your agent should ideally be calm in stressful situations and be able to advocate courteously but firmly with doctors and nurses for the treatment you want. For financial management, your agent should be organized, careful, and good with numbers.

Your health care agent should live nearby, but if the child who lives locally is terrified of things like needles and blood, the other, sturdier child might be a better choice. On the other hand, who can manage finances from afar, but if that child didn’t cope with a checkbook, the other would be better. So if one child is good in one area and the other child is good in the other, the dilemma is solved. You can name the number-proficient daughter for the financial side and your son for the health care. Or, if just one child is altogether more capable than the other, name that one child for both health care and financial powers.

But you do not want to create a situation where children who share the job start arguing about what health care you would want. Busy physicians have little time or patience to mediate fights like that. Likewise, you do not want your children quarreling about how you would want your money to be spent.

That’s why it’s best to give one child decision-making authority at a time. You can name the other as a backup in case the first child becomes unavailable, but naming both to serve simultaneously is generally not a good idea. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact us. Please contact our Reno office by calling us at (775) 853-5700.

Elder Living, Healthcare

Don’t Wait for a Crisis to Discuss Long-Term Care With Your Parent

It is unclear whether or not your parent has a plan in place for long-term care. It is a difficult topic to broach; no one wants to talk about death and the financial realities that come with aging.  Instead of having a proactive conversation early in a parent’s aging process, most families have a reactive discussion under high levels of stress and emotions while their parent is experiencing an adverse health event.  The Public Broadcasting Service (PBS) has reported that 85 percent of the time long-term care decisions are made during a medical crisis. The message is clear, be proactive and start discussing the important financial questions with your parent.

Prepare Yourself

Your parent will feel more comfortable and at ease if you have processed your feelings before talking to them.  Conduct research so that you are knowledgeable enough to present a clear and concise set of options for your parent.  Having options allows your parent and family to make decisions and feel in control of the process.  You are seeking progress, not perfection. It may not all become settled in one conversation, but the price of silence about your parent’s plan may be very costly to you.

Review Documents

Two of the most critical personal legal documents are a durable power of attorney (DPOA) and a healthcare proxy. All older adults should have these documents as it gives legal authority to a designated representative to make financial, legal, and health care decisions on your parent’s behalf. If your parent does not have a DPOA and becomes incapacitated, you will have to go to court to get appointed as your parent’s guardian which can be a complicated legal process at a time when your energy is better spent in the care and decision making for your parent. If they do not have a DPOA and health care proxy in place make arrangements for them to meet with a trusted elder law attorney to properly draft the legal documents.

Often a parent will have a will, retirement account information, and insurance policies that have not been revisited or updated in years, sometimes decades. When was the last time your parent reviewed beneficiary designations? Family circumstances change, and the birth of a child, death, or divorce can affect how your parent may want beneficiaries designated. It is best to review financial and insurance data annually with your parent and make adjustments if necessary. For example, if the parent’s children are grown it might be best to cut back on the amount of life insurance they carry to save money on annual premiums.

Long Term Care Plan

Address the issue of long-term care. According to the PBS, a full 70 percent of all seniors will need some long-term care as they age. Even if your parent is healthy today odds are they will require long-term care and the costs are staggering. Some life insurance companies will add a long-term care rider to an existing policy. Medicaid also can cover some long-term care costs, but neither standard health insurance nor Medicare will cover your parent’s long-term care expenses.

Meet the Team

Ask your parent about their financial advisors and request a brief introduction to them.  Find out who they are and how you might contact them in the event your parent is unable to do so. This information will allow you to keep an eye on your parent’s accounts and be confident the advisors are trusted, objective, and well versed in elder financial issues. Oversight by you in a slightly detached way provides your parent privacy and independence about their finances but allows you to protect them from unscrupulous advisors. 

Understand Filing System

The last thing you need to discuss is where this vital information is filed so that before a crisis hits you know where to find the important documents, online passwords, and forms of ID you will need to facilitate your parents well being. While you do not have to see all the specific contents of the information, particularly the financials, knowing where they keep the data is critical in a crisis. Remember that as your parent ages they may start to change the location of the information. Check with them a couple of times a year to ensure the information is still in the same place and physically look to be sure it is.

Discussing your parent’s strategy is best begun while they are healthy.  Proactive planning is the best way to help your family as your parents age.  Contact our office today and schedule an appointment to discuss how we can help you and your family.

Elder Law, Healthcare

Tips for Understanding Medicare

Navigating Medicare can sometimes seem like going through a maze. On the one hand, Medicare is obviously a good resource because it provides medical benefits to seniors who are often on a fixed income. On the other hand, however, navigating the ins and outs of Medicare can be seriously confusing, causing many to give up in exasperation. If you are a senior and in need of medical care do not despair—there are numerous resources available to help you navigate the complicated details and minutiae of Medicare.

  • Consider hiring a qualified local elder law attorney sooner than later. Their professional knowledge of the ins and outs of the Medicare system combined with their experience working with senior citizens allows you to get the help and coverage you need as quickly as possible.
  • There are multiple websites you should check out. Medicare.gov, the official site of Medicare should be a starting point, as it provides numerous facts on the program and allows you to search for providers. The Social Security Administration website also has information on Medicare eligibility and enrollment. These are just two, but you can perform an Internet search on Medicare information and you will receive a list of several sites to review.
  • If you are uncomfortable working with computers it would be in your best interests to ask a friend or relative to help you because some of the information on the internet is very valuable. However, for those who would rather talk to a person, you may call 1-800-MEDICARE (800-633-4227) for more information.
  • Another great resource is the American Association for Retired Persons, commonly known as AARP. AARP is a well-established advocate for senior citizens in the United States. The organization offers helpful, reliable resources such as Information-packed webinars featuring experts who can break down some of the Medicare facts that applicants need to know.
  • There also may be support available at the state level like State Health Insurance Assistance Programs, or SHIPs. These programs offer free counseling for seniors who receive Medicare. Medicare applicants and their loved ones should visit shiptacenter.org for more information.

But if you want to save yourself hours of confusing computer research and potential headaches, the best idea is to speak with an experienced local elder law attorney before the Medicare application process even begins. A good elder law attorney can assist you with the complex process, ensuring that you get the benefits you are entitled to more quickly. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact us. Please contact our Reno office by calling us at (775) 853-5700.

Elder Law, Healthcare

Department of Veterans Affairs Nursing Homes’ Nationwide Rankings

The Department of Veterans Affairs (VA) released a ranking of 133 VA nursing homes in an effort to further transparency within the organization. The 5-star ranking system helps veterans and their families to locate the best facility possible in their area. The posted performance ratings are slated to be updated annually and include the names of the nursing homes associated with the VA system, one to five-star ratings for quality of the environment, care, and staff based on unannounced on-site surveys at each facility from which an over all-star ranking is assessed for each facility based on the criteria scores.

The mandate for more transparency regarding veteran care began with other internal statistics that are now publically published including:

The VA is the first hospital system nationwide to publish these statistics. “Now that VA has made a commitment to reporting accurate quality and comparative data on its nursing homes, we are pleased to begin adding that important information to our transparency portfolio for the benefit of Veterans in making their health care choices,” said Acting VA Secretary Peter O’Rourke.

Of the 133 nursing homes ranked, 34 earned an overall 5-star ranking. 73 nursing care facilities experienced no relevant change in quality. One nursing home dropped from a 5 to a 4-star ranking but still retains a reputation for quality VA care. The acting VA Secretary is determined to use best practices to lift the 11 worst scoring; one-star rated nursing homes to viability and overall drive improvements across the VA nursing home system.

The ranking system used within the VA system was designed to allow valuable comparisons to the already existing 5-star ranking system by the Centers for Medicare (CMS), a federal agency within the Department of Health and Human Services. The VA nursing home interactive map helps you identify your best options. Then you can compare those options against Medicare.gov Nursing Home Compare searches.

Overall the data shows that the VA nursing home system ranks very close to private sector nursing homes, even though the VA nursing homes on average care for sicker patients than those in private care facilities. Of the 15,487 nursing homes ranked by CMS, almost 29 percent had 5-star rankings, compared to about 26 percent of VA nursing homes. However, the VA had only an 8 percent one-star ranking compared to 13 percent for CMS-ranked private care facilities. It should be noted that because the VA does not turn away eligible veterans and they typically come with more complex medical conditions it is more difficult for the VA nursing home system to achieve higher rankings. Of course, these are just statistics, and while they help with the overview of options, this is a veteran’s story of care; it’s a story about people who served this country.

VA nursing home patients tend to have more numerous and challenging medical conditions than their private-sector counterparts patients. Residents in a VA nursing home have conditions rarely seen in private nursing homes including higher incidents of prostate obstruction, spinal cord injury, mental illness, homelessness, PTSD, and combat injury. While a private sector facility can selectively admit patients, the VA will not refuse service to an eligible veteran no matter their condition.

Transparency of VA nursing home care and ranking systems that allow comparison to private care facilities can significantly help you or a veteran you love get the proper nursing home care required. There is a lot of information to understand how your specific military service record ranks you within the VA health care system in general and then explicitly applying those conditions to an adequately ranked nursing facility. If we can be of assistance, please don’t hesitate to reach out. Please contact our Reno office by calling us at (775) 853-5700.

Elder Law, Healthcare

Divorce and the Effects on Medicaid

Every so often, marriage comes later in life as it did for Wanda and Harry. This was their second marriage, and both had children from the prior marriages. The couple wanted their children to inherit from their respective parents, so Harry and Wanda signed a prenuptial agreement to keep their property clearly separated.

Unfortunately, Harry was then diagnosed with Alzheimer’s. Medical bills piled up, his condition worsened, and soon Wanda was no longer able to care for him at home. But the cost of nursing-home care was formidable.

The Medicaid program is designed to help pay for that staggering cost. However, before a couple can be eligible, the rules require that the assets of both spouses are counted to pay for the care of one, even if only one spouse needs the care. Prenuptial agreements do not matter. The Medicaid rules count the assets of both spouses together. Wanda would be permitted to keep some of her property for her own use – but this would not be enough for her to maintain her standard of living, pay for her retirement, and still leave enough for Wanda’s children to inherit.

Wanda heard that divorce might solve this dilemma. The couple’s assets would get separated in the divorce proceedings and, after that, only the property designated as Harry’s would be applied to the cost of his care. He would spend that down, Medicaid would then step in, and Wanda’s share would remain her own.

But Wanda didn’t like the idea of a divorce that would be only “on paper,” because she had no intention of deserting Harry in his time of need. Harry’s children weren’t happy, either. And if the divorce was going to work as intended, the couple should probably consult not just one but three professionals – an elder law attorney, a financial planner, and a divorce lawyer.

But this plan would involve expense, possible family unrest, and uncertainty as to whether a court would approve the plan. The divorce strategy comes with significant downsides.

Early planning is best, to consult an elder law attorney at least five years before the need for Medicaid arrives. If that is not possible, an experienced elder law attorney can find other, less-fraught ways than divorce.

Early planning if possible, though, is always best. If we can be of assistance, please don’t hesitate to reach out. Please contact our Reno office by calling us at (775) 853-5700.

Estate Planning, Healthcare

Advance Health-Care Directives for Critical Decisions

Imagining how we may perish is probably one of the hardest things we will ever have to think about. Yet, if we want our dying to be meaningful and merciful, it is imperative that we think about it while we still can. Most of us want to die at home, in a familiar and peaceful setting surrounded by loved ones. We would much rather not spend our last moments in an emergency room or ICU, with strangers futilely pounding on our chests and our families relegated to the waiting room.

With those two alternatives in mind, we need to do all we can to keep control, as much as possible, of decisions that need to be made long before our final moments. We need to think carefully, well in advance, about what makes life worth living, and where pain and limitation have so eroded that quality of life that we would prefer not to go there.

These are notoriously difficult questions, but it is vital to address them anyway. For example, Terri Schiavo spent nearly half her young life unconscious in a condition known as a “persistent vegetative state,” being kept alive by a feeding tube. Her husband and friends claimed that before her severe brain injury, she said that she would not want her life sustained by machines. Unfortunately, she never put that wish in writing. On the other side, her devout family and right-to-life supporters insisted that she be kept alive despite her dire condition. After protracted litigation, Ms. Schiavo’s husband prevailed, the feeding tube was withdrawn, and fifteen years after she was injured and never having regained consciousness, she was finally allowed to die.

Since her passing, the law has evolved nationwide to encourage us all to document final wishes, to avoid the anguish and uncertainty of Ms. Schiavo’s situation. There are a number of documents available in your state for that purpose. The umbrella term for these is “advance health-care directives.”

It’s our job as lawyers to help you sort through the various directives needed to express your wishes. Here is a step-by-step guide to begin the conversation about final wishes, and to understand which document does what when.

1. If you are over the age of 18, appoint a health-care agent to speak for you when you can’t.

Decide who, among those who know you well, is best suited to take on this responsibility. That person must possess good communication skills, remain calm in difficult situations, and be able to deal flexibly with the complexity that might arise in reconciling your wishes with available medical options. Depending on which state you live in, your agent can also be called a “health care proxy.”

Sit down with that person and discuss your wishes in various scenarios. This is not an easy conversation to have, but there are guides available to help you. Visit “The Conversation”

and download the starter kit.

Click to access TCP_StarterKit_Final.pdf

2. Health Care Power of Attorney (HCPOA)

Once you have had that conversation, visit your lawyer to name your agent formally in an HCPOA document. HCPOA conveys legal authority on your agent or proxy to express your health-care decisions when you are unable to.

3. HIPAA authorization

Your agent or proxy will also need access to your otherwise private medical information. This is best done by a standardized document that complies with the federal Health Insurance Portability and Accountability Act (HIPAA). Without this authorization, your agent will be unable to obtain the medical information necessary to exercise the authority you want him or her to have.

Now armed with your agent and the HCPOA and HIPAA documents, you will know that if you were to meet with an accident or lose consciousness, you have chosen and empowered an advocate to speak for you. You should review and update these documents every five years or so.

The next three documents are important at the end of life. All these documents should stipulate that you desire comfort care, to keep you clean and as pain-free as possible. Remember, though, that you must create these documents while you are still able to know and communicate your wishes, so it’s best to do the next two documents at the same time that you do your HCPOA and HIPAA.

4. Living Will (also known as Physician’s Directive)

This document is for use when you are not enjoying the quality of life. Either death is imminent; you are in a persistent vegetative state; or you are permanently unconscious, permanently confused, or unable to care for yourself. If you have no awareness of others; can’t remember or understand or express yourself, or are unable to move, bathe, or dress yourself, it’s advisable to have expressed, in advance, the kind of treatment you want to receive or not receive.

A living will express your choice as to whether you do, or do not, want artificial measures that will merely prolong your life but not improve it. Those measures, among others, may include CPR if your heart stops, or breathing or feeding tubes or repeated courses of antibiotics or chemotherapy.

You may also require physicians, and not your agent, to be the ones to decide whether to cease life-prolonging procedures as you would like. This decision will relieve your agent from the heavy responsibility of making that irreversible choice.

Living wills are legal in almost every state. Ask your lawyer. Don’t make this kind of document yourself. Otherwise, you risk that the document may be misinterpreted, with drastic consequences.

5. Specialized Directives

Medical decision-making varies depending on specific health conditions, so specific directives may be tailor-made for those conditions. For example, people suffering from advanced dementia benefit from a directive, in addition to the HCPOA or living will, specifically requesting that hand-feeding be ceased when the person can no longer speak, recognize loved ones, or move purposefully. Otherwise, caregivers are obligated to cajole or demand that the patient be fed by hand, taking advantage of a primitive reflex to open the mouth. This risks that the person may inhale the mush instead of swallowing it, in some cases causing pneumonia.

For this kind of condition, ask your lawyer to prepare a specific directive tailored for advanced dementia, using the directives created by End of Life Washington

or End of Life Choices New York.

If, however, you suffer from a neurological illness like Lou Gehrig’s disease (ALS) or advanced Parkinson’s, even though most of us would decline mechanical treatments, those same treatments may be important aids to preserve the quality of life for people with those conditions.

Again, remember that you must create these documents while you still have the capacity to communicate your wishes. Living wills should be reviewed every six months because wishes can change depending on the progress of the illness.

6. POLST or MOLST

This is a brightly colored, short-form document that is primarily intended for emergency responders when the patient is frail and is likely to die within a year. It is designed to be immediately recognizable by hospitals and EMS personnel, to express that when the patient is unresponsive, cardio-pulmonary resuscitation (CPR) and other aggressive treatments are desired or not desired (DNR).

This document should be filled out in consultation with the patient’s physician. The acronyms stand for “physicians’ orders for life-sustaining treatment” or “medical orders for life-sustaining treatment.”  Many states provide for this kind of document.

7. Make Your Documents Known

When it comes time to use your documents, they must be readily available. Give a copy of them to your agent or proxy, make sure they are included in your medical records, and, if you are in need of the POLST or MOLST, post it beside your bed or on your fridge where EMT knows to look for it. If your documents can’t be found, or if your agent or family don’t understand them or ignore them, you will have spent your time, effort, and money in vain.

But if all goes according to your wishes, you will have done your best to create a good death, one that is as meaningful as possible for all concerned. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact us. Please contact our Reno office by calling us at (775) 853-5700.

Elder Law, Elder Living, Estate Planning, Healthcare

How Do the Stimulus Payments Affect Medicaid?

The federal government has issued direct payments, “stimulus checks”, to most Americans to invigorate the economy after the devastating coronavirus pandemic. This money is to ease the pain of the Covid pandemic and to jump-start the economy.

The stimulus money should have arrived in the same way that Social Security payments or tax refunds are made, either direct-deposited into a bank account or mailed as a paper check. If the money has not arrived, or for guidance in general, consult the IRS website:

https://www.irs.gov/coronavirus/economic-impact-payment-information-center#more. Other options are to call 800-919-9835 or 800-829-1040, or you can visit your local Taxpayer Assistance Center.

Those who are receiving means-tied government assistance, like SSI, VA benefits, or Medicaid to pay for long-term care, need not worry that stimulus money will be counted against them for eligibility. As long as recipients spend the money within twelve months, the money will not push them over the maximum amount they are permitted before they are penalized.

Recipients may use the money to buy new clothing, cell phones or televisions, toiletries, snacks, dental treatment, or improved quality of medical supplies. They may buy an irrevocable funeral trust, to avoid future expenses to family members. They may give the money away to family or charities. The money might pay for updating estate-planning documents, or for consulting a geriatric care manager. (Some commentators believe that you could give the money away to family or charities. While this may be OK under federal law, it’s probably best not to take chances with how the states may interpret it. Spend the money, don’t donate it.)

Provided that the money is not spent on what could be called an asset or an investment – like, for example, rare coins or stocks or bonds – the money will not be counted against the asset limit for Medicaid eligibility. And, again, the money must be spent within twelve months. It must not be forgotten about or left unnoticed in a bank account.

It also must not be misappropriated by nursing homes or assisted-living facilities. If this has happened to you or your loved one, inform the facility manager that the money must be refunded to the resident. Cite the law that carves out the payment from being counted toward federally assisted programs like Medicaid: 26 U.S.C. § 6409.  Or, show them a handout downloadable from the Congressional Research Service.

If the facility will not refund the money, contact your state’s attorney general. Then lodge a complaint with the Federal Trade Commission.

Recipients of assistance, like anyone else, are free to spend their stimulus money. The money is theirs. It is tax-free. It is intended to be spent, and it should be spent, in any way the recipient would like (subject to the conditions above).

This is one time when spending is unquestionably a good thing – for buyers and sellers.

If you have questions or would like to discuss your situation in a confidential setting, please don’t hesitate to reach out. Please contact our Reno office by calling us at (775) 853-5700.