Elder Law

The Right to Appeal Has Been Granted to Medicare Recipients

As of a recent federal court decision, Medicare beneficiaries can now appeal previous patient status decisions.

The Underlying Issue

When Medicare patients go to a hospital, they often enter through the emergency department. The physician who attends to them must decide whether to admit them into the hospital as an inpatient, discharge them, or keep them in the hospital under observation status. A patient under observation services receives care virtually identical to inpatient care but is classified as an outpatient to qualify for traditional Medicare coverage.

If the patient receiving observation services must go to a nursing home to continue their recovery, traditional Medicare won’t cover the nursing home care because they were not classified as an inpatient for at least three consecutive days when they were in the hospital. This can have a serious financial effect on the patient since they must pay for the services on their own. What made the situation worse is that the Centers for Medicare & Medicaid Services would not allow patients to appeal the decision.

Observation Status

A patient in observation status is in limbo since a physician has determined that they are too sick to go home but not sick enough to be admitted into the hospital as an inpatient. They receive basically the same level of care as a patient who is classified as an inpatient, including mental and physical assessments, diagnostic tests, short-term treatments, medications, and feedings.

In 2015, then-President Barack Obama signed the Notice of Observation Treatment and Implication for Care Eligibility Act, a.k.a. Notice Act. The Notice Act requires hospitals to notify patients if they have been receiving hospital services under observation status for more than 24 hours. Patients must be given both written and oral notifications if their observation status exceeds 36 hours.

The written notice must explain why the patient is not classified as an inpatient. It must explain how their observation status may affect the cost of their hospital care and their eligibility for skilled nursing facility care coverage. The written notice must be signed by the patient or someone acting on the patient’s behalf. If they refuse to sign the notice, then a staff member of the hospital must sign it.

Alexander v. Azar

A recent federal court decision in the Alexander v. Azar case sided with Medicare beneficiaries who had been admitted to hospitals as inpatients but then changed to observation status. If you were a patient in a hospital and switched from inpatient status to observation status, you may have the right to appeal Medicare’s decision. To appeal your observation status decision, you must have been:

  • Hospitalized since January 1, 2009
  • A Medicare beneficiary with traditional Medicare (not Medicare Advantage) during your hospitalization
  • Admitted to the hospital as an inpatient before your status was changed to observation status
  • Notified of Medicare Outpatient Observation status from the hospital or have a Medicare Summary Notice stating that you will, or did, receive observation services that are not covered by Medicare part A
  • Qualified for either both Medicare Part A and Part B or only Medicare Part A
  • Hospitalized for at least three consecutive days but fewer than three days as an inpatient
  • Admitted to a skilled nursing facility within 30 days of discharge from the hospital.

Stay up to date as this situation develops by checking in with the Center for Medicare Advocacy.

Help with Medicare and Medicaid

Navigating the complicated Medicare and Medicaid systems can be difficult and time-consuming. It is all too easy to make mistakes that will cause coverage to be denied. An experienced elder law attorney can guide you through the process to get the benefits you need.

We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

Estate Planning

A Comparison of Elder Law and Estate Planning  

You may wonder what estate planning and elder law entail and how they differ as you plan for your future, both financially and in terms of health care. Estate planning and elder law also have some similarities.

Even though these two types of law are for different stages in life, they are often handled at the same time. This is because many people wait till later in life to start their estate planning process. When an older person creates an estate plan, they may also need some elder law counseling. To better understand the two areas of the legal field, we will look at the solutions they provide, questions they answer, and how they can work together.

Estate Planning

The main goal of estate planning is to choose legal documents that will determine what will happen to you and your assets once you have passed away or become incapacitated. An estate planning attorney will help you make important decisions, such as:

  • Who makes medical and financial decisions if you are unable
  • Who is allowed access to your medical records
  • How assets are distributed after you are gone
  • Who cares for minor children if you become incapacitated or die
  • Who manages money for your minor children if you are no longer able
  • How to handle your funeral arrangements and burial

Durable Powers of Attorney

By using a general durable power of attorney document, you can name a person, or persons, to make financial decisions on your behalf if you are no longer able to do so. Expressing your end-of-life wishes requires designating a person to make healthcare decisions for you by completing a health care directive. By completing a Health Insurance Portability and Accountability Act (HIPAA) form, you will give your health care providers permission to share your medical records with the people listed on your HIPAA form.

Wills and Trusts

In your will, you can name the beneficiaries of your estate as well as a guardian to care for any minor children you may have at the time of your death. You can also name a conservator to manage the money you leave for their benefit. Some people create a trust, or trusts, to hold their assets during their lifetime and after death. They then sign a pour-over will that moves assets into their trust(s) upon death. You can leave instructions concerning your funeral or memorial service and what you want to happen to your remains in your will or a separate document.

Elder Law

Whereas estate planning focuses mostly on what happens after a person dies, the area of elder law focuses on a person’s last years or months. This can include planning for long-term care and applying for government assistance, such as Medicaid, Medicare, and veterans’ benefits, if applicable. Using elder law tools and strategies, an elder law attorney can help you find ways to preserve your assets while preparing to apply for benefits.

Like estate planning, it is best to start the elder law planning process well in advance. To qualify for benefits, such as Medicaid, you may have to sell or transfer ownership of some assets years before applying for benefits. Gifting or transferring assets out of your name must be done according to government requirements, so applying for benefits can be a complicated process. Hiring a skilled attorney can make the difference between receiving benefits quickly or not at all.

Since seniors are at a greater risk for discrimination, neglect, and abuse, elder law attorneys can help seniors and their family members recognize when a senior’s rights are being violated and take legal action to counter and remedy the situation.

Tying Estate Planning and Elder Law Together

It is best to start your estate planning process as soon as possible since the decisions involved could come at any time due to an accident or an illness. Planning for end-of-life care and the benefits associated with it may come later in life, but preparing well in advance lets you legally reduce assets for an extended period to qualify for benefits, like Medicaid. 

Even younger families just starting their estate planning process may look at elder law planning at the same time for senior family members’ needs. Some estate planning tools, such as trusts, are often used when helping a parent plan for Medicaid and other government benefits for long-term care expenses. An attorney experienced in both estate planning and elder law can advise you in these areas and help you navigate complicated processes. We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

Veterans

An Act to Protect Veterans Becomes Law

It is the largest expansion in healthcare and benefits for veterans for more than thirty years since the Sergeant First Class (SFC) Heath Robinson Honoring Our Promise to Address Comprehensive Toxics (PACT) Act was passed on August 10, 2022. The cumbersome name stems from the story of SFC Heath Robinson, who died from a rare form of lung cancer due to toxic exposures after serving as a combat medic. This bill honors his name and the memory of all those lost to toxic exposure during service. The law comprehensively addresses the risk of toxins impacting the health of veterans, their families, and caregivers. 

Often, it can take years for these illnesses to manifest due to the increased health risks military servicemembers assume in locations all over the world. This time lag between exposure and disease can make it difficult to establish a direct connection between a veteran’s service and resulting illnesses and disabilities from multiple military environments. The PACT Act charter will bring about the following changes:

  • Expand and extend veteran eligibility for VA health care due to toxic exposure during the Vietnam, Gulf War, and other post-9/11 eras
  • The addition of more than twenty new “presumptive conditions” as they relate to military burn pits and other toxic exposures
  • The addition of more presumptive-exposure locations for radiation and Agent Orange
  • Requirements for the VA to provide toxic exposure screenings to every veteran receiving care in the VA healthcare system
  • Increase funding for and improve research efforts, staff education, and treatment as it relates to toxic exposures

Presumptive Conditions

What exactly is a “presumptive condition” due to toxic exposure? A VA disability rating typically connects your military service with proof that your service is directly responsible for your condition to qualify for benefits. However, in some situations, there is now an automatic presumption that your service is responsible for your condition. Laws or regulations determine whether a condition is considered presumptive. Under these circumstances, there is no need to prove your service is responsible. You only need to meet the service requirements for the presumption.

The eras and wars in which a veteran served and their associated benefits eligibility are detailed on this US Department of Veterans Affairs PACT Act resource link. The website also outlines claim filing processes to receive these benefits. If the VA previously denied your claim but now considers your condition falls into the presumptive category, you can submit a supplemental claim for VA review under the PACT Act.

Extended Healthcare Enrollment Periods

In particular, for post-9/11 combat veterans, the PACT Act extends the time period to enroll in VA health care from five to ten years post-honorable discharge. Additionally, there is a one-year open enrollment period for those combat veterans who do not fall within this window of time. These enrollment changes increase the number of veterans able to participate in VA PACT Act benefits without demonstrating a direct service-connected disability. By establishing presumptive conditions and expanding the list of other illnesses, the VA greatly reduces the paperwork and need for medical exams to qualify for and grant access to health care and disability compensation. These changes streamline the process of receiving earned benefits when the timing of this help is everything due to a debilitating illness(es).

VA Secretary Denis McDonough encourages those veterans who think they may be eligible for these benefits to learn more about the PACT Act by visiting this VA resource link or phoning 1-800-MY-VA-411. Benefits associated with the PACT Act became effective on August 10, 2022, when the bill was signed into law.

Claiming Your VA Benefits

Like many VA benefits claims, the process can be daunting even though this law seeks to simplify its approach while increasing the pool of eligible veterans. Correctly filing out and filing forms is crucial to initial application success. Retaining the services of an attorney specializing in veterans’ benefits can help ensure you submit your claim accurately, streamlining receipt of your benefits. This law will deliver much-needed benefits to millions of veterans and their survivors. Upon reviewing the information in the VA links provided, if you are a veteran that falls within these timeframes of war and other post-9/11 combat services, talk to a veterans attorney today.

We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

Elder Law, Estate Planning

Medical Advance Directives: Understanding the Different Types

A trauma or illness could incapacitate anyone, and no one likes to think about it. People experience it every day, unfortunately. With this knowledge, many people like to prepare in advance for the kind of treatment they want in the event of cardiac arrest, respiratory failure, stroke, and brain death. Some people would allow doctors to perform “heroic measures,” and others would rather die without significant medical intervention. Medical advance directives are legal documents that outline the details of your advance healthcare planning.

There are a few types of medical advance directives. A durable power of attorney names a person to act as your healthcare proxy or surrogate who can make medical decisions and follow those outlined in your living will if you are incapacitated. A living will tells medical professionals when they should and should not use certain interventions, like intubation, CPR, and IV nutrition. A living will only pertain to saving a life, but a power of attorney can make any decision. For example, if a person is unconscious but not in peril of death, a power of attorney could consent to minor medical treatment that is not life-threatening.

What Happens without Medical Advance Directives

Of course, many people without advance directives get into car crashes or have other accidents and need someone to make medical decisions for them. Without an advance directive, the state relies on a legal hierarchy of next of kin. Legal guardians make decisions for minors and adults with a conservatorship. The state usually recognizes a spouse or domestic partner as the next of kin for most adults. Without a spouse, the responsibility often goes to an adult child, sibling, or parent. For many people, this system works well.

The legal hierarchy presents major problems for others. Sometimes people remain legally married to someone who no longer represents their best interests. At other times your next of kin does not share the same values and would not make the right choices for you. Sometimes, you feel more aligned with a person who is a friend instead. In all of these situations, having an advance directive helps ensure that the medical decisions made on your behalf are the same or similar to those you would make for yourself if you were able.

Items to include in a Living Will

Your power of attorney can express end-of-life wishes that address the use or withdrawal of specific treatments. Likewise, some people may want to plan certain end-of-life decisions while they are still healthy. You can specify the types of medical treatment desired, such as:

  • Pain relief (analgesia)
  • Antibiotics
  • Intravenous hydration
  • Artificial feeding (feeding tube)
  • Cardiopulmonary resuscitation
  • Ventilators
  • Do not resuscitate orders (DNR)

Of course, addressing every possible scenario is impossible, but try to be explicit about your instructions for common life and death scenarios.

Items to Discuss with your Healthcare Proxy or Surrogate

Your power of attorney for medical advance directives affords the same rights to request or refuse medical treatment to the surrogate as if the individual at risk were capable of making and communicating decisions. With this in mind, you want to choose someone you trust and who shares your values. You also want to make your desires clear to that person so they can carry out your wishes. For example, let them know if you strongly oppose donating organs, having a blood transfusion, or certain hospital visitors. Explain your decision-making process to them so they can use that reasoning to figure out what you would want.

Creating Advance Directives

As advance directives are legal documents, lawyers are most effective at writing and reviewing them to reflect your wishes and hold up in court. Something is always better than nothing, so start with the basics and add details as they arise. An estate planning or elder law attorney can help create and review your advance directives. As experts in this area, we know the right questions to ask. We will listen to your wishes and help guide you in making important decisions about your care. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

Elder Law

Taking Care of a Loved One’s Finances

Banking and payment of bills can become more difficult with age, but incapacity by accident or illness can strike anyone at any age, posing the same challenges. Incapacity is not just about mental cognition, accident, or illness. You may have a loved one who cannot drive themselves to the bank or has a distinct visual or hearing impairment. Without a plan, incapacity will jeopardize your loved one’s daily financial activity and preservation of wealth. Some possible solutions for financial oversight include:

  • Having a caregiver provide help
  • Selecting a power of attorney
  • Implementing trusts
  • Retaining a professional fiduciary
  • Combining some of these options

Creating a Financial Plan

Whatever you choose, careful thought and thorough planning are needed for the best outcome. To minimize family conflict, it helps to make plans together before experiencing an illness or accident that makes it impossible to handle financial transactions or decisions. Discussions among siblings, in particular, are important before assigning responsibilities. Openly discuss issues of health and financial oversight with trusted family members to minimize misunderstandings, reduce distrust, and prevent potential legal disputes. If a particular conflict seems unresolvable, a neutral third party, such as trusted clergy, a family therapist, or a mediator, can provide impartial counsel.

Protecting Loved Ones from Creditors and Fraud

A joint checking account may seem like a straightforward solution for a caregiver to write checks, make ATM cash withdrawals, track expenses, and perform other financial duties on behalf of their ward, but there are risks. The second party on the account may use their banking privileges to steal from your loved one. Creditors can seek payment from either individual on this account, so if your secondary party carries debt, your loved one may wind up paying for it. Finally, when either party dies, money in this account will belong to the surviving account holder, which may create conflict among siblings and heirs.

Setting Up a Convenience Account

About half of all US states now permit a “convenience account” where the second account holder only has permission to transact for the benefit of the original account holder. The account type is handy when the only need is to address paying bills and providing nominal amounts of cash. The secondary party will have no permission to use the money for self-interest or inherit the account upon the principal’s death. Financial stewardship on behalf of a loved one in a convenience account should include:

  • Written records of expenses paid from the account
  • Notes with the reason for all checks in the memo field
  • Money in the account is protected against being borrowed or claimed as an asset
  • Purchases can’t be made by the steward or a third party
  • A trusted family member acting as the second party to the account is preferred over a paid primary caregiver 

When financial oversight for your loved one needs to be more comprehensive, other fiduciary categories can address financial stewardship for aging or incapacitated loved ones.

Power of Attorney (POA)

This legal document sometimes referred to as a durable financial power of attorney, designates an individual to make financial decisions on behalf of the principal (the assignor of the POA) if they become incapacitated. The principal must be of sound mind to grant a power of attorney.

Naming a financial POA, also called an agent or attorney-in-fact, will prevent the risk of a family going to court to file for guardianship if their loved one becomes incapacitated. Establishing guardianship can be a lengthy, expensive, and potentially divisive process for family members.

Trusts and Trustees

Your loved one may have their elder law attorney create and transfer assets to a revocable living trust with a named trustee. In the future, if the trust grantor loses their ability to make sound financial decisions, the trustee becomes the responsible party for the management of the trust’s assets. 

A trustee’s functions may include:

  • Maintaining an insurance policy
  • Paying taxes
  • Making investment decisions
  • Putting valuables in a safe deposit box

However, as long as the grantor is capable, they may change or revoke the trust.

Professional Fiduciary

If your loved one’s financial situation is complex, they may prefer to hire a professional money manager to oversee financial decisions. Not every family has a potential candidate that can manage extensive or complicated assets, or even if they can, they may not live close enough for proper oversight.

This professional may be a certified public accountant (CPA), a trust company officer (bank or investment firm) in the business of managing trusts, or your attorney. A professional fiduciary will charge a fee for service yet still permit family members a provision to relieve the fiduciary of their duties if there is dissatisfaction with performance.

Government Fiduciary

These are special fiduciaries appointed by a government agency to manage benefit payments or refunds issued by the agency, generally the Social Security Administration (SSA), the Department of Veterans Affairs (VA), and the Internal Revenue Service (IRS). These agents can be spouses, family members, court-appointed or professional fiduciaries, or another interested party as long as they receive government agency approval. 

A Social Security appointee is a representative payee and can assist with all types of agency benefits, a VA appointee is a VA fiduciary, and an IRS appointee is an IRS fiduciary. These government fiduciaries only have the authority to manage the corresponding agency’s benefits or refund checks. They have no other legal power to manage a loved one’s property, medical matters, or financial affairs.

Court-appointed Guardian

If your loved one took no action to implement a financial oversight strategy while competent and then becomes incapacitated, the court will conduct a hearing to appoint a guardian. A guardianship implies a profound loss of freedom, even dignity, so much so that less restrictive alternatives should be tried and proven ineffective before establishing a guardian. There are instances when guardianship needs implementation, but the court process can be lengthy and expensive when immediate decisions for your loved one are needed.

These wide-ranging options all require the appointed person to act with the utmost fiscal responsibility to properly manage their loved one’s financial well-being and protect them from elder financial abuse. Family conversations and an elder law attorney’s input will help define which options are best for your loved one to implement while they are capable. We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

Elder Law, Estate Planning

Understanding the Role of an Elder Law Attorney 

As seniors grow older, the dependency on their family to handle financial and health matters rises. They often believe that their family members will be able to take care of any issues that arise. While consulting with loved ones about plans and wishes can be beneficial, relying solely on them can cause problems in the long run for both seniors and their families.

Instead, it is best to seek the advice of an elder law attorney when it comes to putting proper planning in place. The issues around retirement, wills, and estate planning are often complex. Working with a legal professional can help seniors navigate these details to ensure that decisions and plans are suited to their specific situation.

Having legal arrangements in place related to retirement benefits, assets, and determining who will be responsible for the welfare of an aging loved one can also help to avoid family disputes, and ensure that assets are preserved as intended. And although we’d like to assume family members always have seniors’ best interests at heart, legally binding arrangements also protect against abuse and financial exploitation.

But it isn’t just seniors that benefit from working with a legal professional. Elder law attorneys can also assist heirs and beneficiaries by ensuring that assets don’t fall into wrongful hands due to debts, divorces, or other extenuating circumstances. They can also help beneficiaries avoid the long and complicated probate process.

Elder law attorney expertise

Elder law attorneys have the expertise to help seniors and their loved ones navigate all of the legal issues impacting the elderly. They can help clients to better understand Medicare and Medicaid programs and laws, and assist clients and families with all of the legal aspects of planning, including drafting wills, estate plans, and trusts.

Below is a list of some of the services elder law attorneys provide:

  • Medicaid Eligibility, Applications, and Planning
  • Medicare Eligibility and Claims
  • Social security and disability claims and appeals
  • Long-term care planning
  • Financial planning for long-term care
  • Drafting wills and trusts
  • Medical Power of Attorney
  • Financial Power of Attorney
  • Elder abuse case management
  • Patient rights
  • Nursing home issues and disputes
  • Establishing and managing Estates and Trusts
  • Tax advice and planning strategies
  • Probate services
  • Asset protection

… and more

Seniors tend to procrastinate planning due to the unpleasant associations of illness and death. Elder law attorneys can alleviate that discomfort by facilitating family conversations and shifting the focus to the positive benefits of planning and preparedness. Cost can also deter seniors from seeking legal advice and services, however, failing to plan can ultimately end up being far more expensive.

No matter the issue at hand, seniors and their loved ones will benefit from working with a legal professional. If you’d like to learn more about how elder law services can help you or an aging loved one, contact our firm today. 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.