Monthly Archives: February 2017

Trump has signed an order that could roll back a rule intended to protect Main Street’s retirement money

February 24, 2017

President Donald Trump has signed an executive order on the Obama administration’s landmark retirement savings rule, setting in motion a potential repeal of a recently passed standard that would have made it harder for financial advisers to give conflicted advice.

The so-called fiduciary rule, which is slated to go into effect in April and will likely now be delayed, requires advisers to put their clients’ interests ahead of theirs. The rule has long drawn rebuke from Wall Streeters and some of those who are close to Trump. Continue reading

CMS Appeals Arbitration Injunction, But Future of Rule in Doubt

February 22, 2017

On January 5, CMS filed a notice of appeal in response to the Federal District Court’s preliminary injunction in November, blocking the agency from implementing a ban on binding arbitration agreements as a condition of long-term care (LTC) facility participation in Medicaid or Medicare. The filing occurred before President Trump took office, so it remains highly uncertain in what manner a new HHS Secretary would move forward with the appeal. Moreover, some Republican members of Congress have called for the new LTC facilities conditions of participation rule to get repealed in its entirety by Congress using the Congressional Review Act. This method allows Congress to overturn any rule finalized within 60 legislative days of its start with only a simple majority in the Senate.

Medicaid Funding Caps Would Harm Older Americans

February 18, 2017

Written by
Eric Carlson
Directing Attorney, Justice in Aging
Jennifer Goldberg
Directing Attorney, Justice in Aging

Executive Summary
Current “Cap” Proposals
Recent months have seen increased discussion of proposals to remake Medicaid and cap federal Medicaid payments to states. Under these proposals, the federal government would provide either block grants or per capita payments to states, and states would have broad discretion to set their own Medicaid standards. All of these proposals are designed to save federal money, and would impose rigid limits on the amount of federal money available to states. For example, the Fiscal Year 2017 House Budget proposal included capped Medicaid funding and a $1 trillion cut to Medicaid over 10 years. By 2026, Medicaid funding would decrease by 33% from what is required under current law. This level of budget cutting, whether imposed through a block grant or a per capita cap system, would necessitate an equally significant diminution in health care availability and quality. States would be forced to either cut current services to the bone, or devise their own shrunken Medicaid standards, without regard to medical necessity and the many existing Medicaid rules that protect beneficiaries. Continue reading

Judge Accepts Medicare’s Plan To Remedy Misunderstanding On Therapy Coverage

February 18, 2017

A federal judge has accepted Medicare’s plans to try once more to correct a commonly held misconception that beneficiaries are eligible for coverage for physical and occupational therapy and other skilled care only if their health is improving.

“Confusion over the Improvement Standard persists,” wrote U.S. District Court Chief Judge Christina Reiss in Vermont in a decision released by the court Thursday. Advocates for seniors say coverage is often mistakenly denied simply because the beneficiary reaches “a plateau” and is no longer making progress. Continue reading

Trump is about to sign an order rolling back a rule intended to protect Main Street’s retirement money

February 18, 2017

President Donald Trump is about to sign an executive order to roll back the Obama administration’s landmark retirement savings rule.

“The rule is a solution in search of a problem,” Trump’s press secretary Sean Spicer said in a press conference. “We’re directing the Department of Labor to review this rule,” Spicer added, saying that the DoL had “exceeded its authority” and represented a type of government overreach the president intended to stop. Continue reading

Government Must Implement Corrective Action Plan to Address Ending Medicare’s Improvement Standard

February 18, 2017

A federal district court orders the federal government to implement a corrective action plan to comply with the settlement in Jimmo v. Sebelius that ended Medicare’s “improvement standard.” Jimmo v. Burwell (U.S. Dist. Ct., D. Vt., No. 5:11-cv-17, Feb. 1, 2017).

Six Medicare beneficiaries and seven national organizations filed a class action lawsuit against the federal government, arguing that home health care agencies and nursing homes routinely terminated the Medicare coverage of a beneficiary who has stopped improving, even though nothing in the Medicare statute or its regulations says improvement is required for continued skilled care. The federal government agreed to settle the lawsuit and to revise the relevant portions of the Medicare manual to reflect that a patient does not need to be improving in order to continue receiving skilled care, as well as to conduct a nationwide education campaign. Continue reading

The Top 10 Elder Law Decisions of 2016

February 18, 2017

Below, in chronological order, is ElderLawAnswers’ annual roundup of the top 10 elder law decisions for the year just ended, as measured by the number of “unique page views” of our summary of the case.

1. Medicaid Applicant’s Irrevocable Trust Is an Available Resource Because Trustee Can Make Distributions

An Alabama appeals court rules that a Medicaid applicant’s special needs trust is an available resource because the trustee had discretion to make payments under the trust. Alabama Medicaid Agency v. Hardy (Ala. Civ. App., No. 2140565, Jan. 29, 2016). To read the full summary, click here. Continue reading

Regulatory Freeze Adds Timing Question on VA Benefits and Other Proposed Rules

February 18, 2017

Following the inauguration of President Trump, the White House quickly issued several decrees impacting regulation. First, Chief of Staff Priebus called for a regulatory freeze on regulations to give time for the Administration to review current proposed rules. Second, the President issued an Executive Order placing a freeze on Federal agency hiring. Third, he issued an Executive Order that for every new regulation, two must be identified for repeal.

These actions put into question the status and timing of proposed rules. For instance, the Department of Veteran Affairs proposed a rule in January 2015 that “would establish new requirements pertaining to the evaluation of net worth and asset transfers for pension purposes and would identify those medical expenses that may be deducted from countable income for VA’s needs-based benefit programs.” In 2015, NAELA submitted comments to the VA and raised its concerns to stakeholders and Congress about the detrimental impact this proposal would have if finalized as drafted.


Medicaid Now More Entwined With ACA Repeal

February 18, 2017

While current focus is on repeal of the Affordable Care Act, Republicans are already collecting information related to the structural reform of the Medicaid program. In addition, President Trump Advisor Kellyanne Conway stated on January 22 that they are looking to block grant the program. At this point, the process to reform Medicaid is expected to start in the spring and run through the fall. Continue reading