Monthly Archives: February 2019

There’s Still Time to Go Back to Traditional Medicare or Change MA Plans

February 27, 2019

Annual Enrollment has ended, but the Medicare Advantage Open Enrollment Period, allowing plan changes or a return to traditional Medicare continues through March 31 – Make sure you are fully informed about the Medicare that is right for you.


  • January 1–March 31

What Can I Do?

  • If you’re in a Medicare Advantage Plan (with or without drug coverage), you can switch to another Medicare Advantage Plan (with or without drug coverage).
  • You can disenroll from your Medicare Advantage Plan and return to Original Medicare. If you choose to do so, you’ll be able to join a Medicare Prescription Drug Plan.
  • If you enrolled in a Medicare Advantage Plan during your Initial Enrollment Period, you can change to another Medicare Advantage Plan (with or without drug coverage) or go back to Original Medicare (with or without drug coverage) within the first 3 months you have Medicare.

What Can’t I Do?

  • Switch from Original Medicare to a Medicare Advantage Plan.
  • Join a Medicare Prescription Drug Plan if you’re in Original Medicare.
  • Switch from one Medicare Prescription Drug Plan to another if you’re in Original Medicare.

President Signs 3-Month Extension of NAELA Priorities

February 27, 2019

NAELA Advocacy Update

President Signs 3-Month Extension of NAELA Priorities
Last Friday, the President signed an extension of NAELA’s two top legislative priorities for the year:

• $112 million for Money Follows the Person (MFP)

• Extension of the guarantee that Medicaid’s spousal impoverishment protections will apply to home and community-based services (HCBS) through March 31, 2019.

Both policies were extended for a short-time due to a compromise from the last Congress on how to offset the costs to the federal government. Importantly, no new limits to Medicaid eligibility were included, such as limits to community spouse annuities. NAELA is now working with key members of Congress to pass a multi-year extension of both programs.

For more information go to Money Follows the Person (MFP) and Home and Community-Based Services (HCBS)

Disability Integration Act Re-Introduced

February 27, 2019

The Disability Integration Act (DIA), which would guarantee access to home and community-based services (HCBS) as a civil right was re-introduced by Sens. Charles Schumer – Minority Leader (D-NY) and Cory Gardner (R-CO) in the Senate, and Representative Jim Sensenbrenner (R-WI) in the House.

For details please go to and to StewartAARPAmicus.pdf

Understanding Undue Influence

February 27, 2019

Courtesy of NAELA News:

David Godfrey, American Bar Association Comission on Law and Aging

Understanding undue influence is a core component of advising clients in their advance planning, as well as preventing and spotting elder abuse. Undue influence replaces the will or free choice of the individual with the will or choice of another person. When someone exerts undue influence over another person, they are abusing persuasion to overpower the will of the individual. This influence can be core to acts of financial exploitation, psychological abuse, physical abuse, and health care decisions that do not reflect the true wishes of the person.

State law and case laws define the necessary elements to assert a claim of undue influence in each state.  Generally, in a claim for undue influence:

• The person is vulnerable—has a reduced ability to resist persuasion;
• The perpetrator is in a position of power or authority;
• The perpetrator overpowered the will of the person;
• The outcome was unfair or improper.

Undue Influence and Elder Abuse

Lawyers counseling older adults should always be on the lookout for undue influence. The most  common claims of undue influence involve financial exploitation. For example, the older adult may make  a gift, sign a document, sell property for less than fair market value, or overpay for goods or services. These  situations may be signs that an abuser is using undue influence on the client. Undue influence is often used  by abusers to convince a person that the abuser is the only person who cares for them. This isolates the older
adult from others—a form of psychological abuse. Isolation increases risk of further abuse and exploitation.  Undue influence is used to convince persons that physical acts they would not willingly consent to are acceptable. Undue influence is used to persuade people on what health care they should receive or not receive.

Undue Influence Screening Tool

California has developed a screening tool for undue influence for use by Adult Protective Services (APS).  The tool provides a clear step-by-step screening process and has application well beyond APS. It directs the  agent through questions on four areas: vulnerability of the person, the position of power or authority of the perpetrator, the actions used to persuade the person, and how or why the outcome is bad for the person. This tool can be used across disciplines or customized to particular settings. Rather than relying on instincts, the tool gives guidance to understanding what the client is experiencing.

The California Elder Justice Coalition website has a good collection of resources and research on undue influence and elder abuse.

NCLER has created several resources to help attorneys counseling older adults to help prevent and address elder abuse:

• Elder Abuse: The Impact of Undue Influence
• Legal Basics: Elder Financial Exploitation
• Drafting Advance Planning Documents to Reduce Risk of Abuse or Exploitation

Please contact for free case consultation assistance. Sign up for our email list and access more resources at

Social Security expansion to get serious hearing in U.S. House

February 27, 2019

Courtesy of NAELA News
CHICAGO (Reuters) – The idea that Social Security benefits should be expanded – not cut – is going mainstream.

Until the last few years, all Washington could talk about was how to cut Social Security benefits, and by how much. But a grass-roots progressive coalition began campaigning for expansion in 2013, and the idea has since moved straight to the heart of the Democratic Party.

That was evident this week when U.S. Representative John Larson introduced his Social Security 2100 Act in the House of Representatives. The Connecticut Democrat’s proposal calls for a small across-the-board bump in benefits, a more generous annual cost-of-living adjustment and a higher minimum benefit for low-income workers. Larson’s plan would pay for the expansion in two ways. First, it would add new payroll taxes to wages over $400,000 (currently, tax collection stops at $132,900 of annual income). The bill also would gradually phase in a higher payroll tax rate, with workers and employers each paying 7.4 percent by 2042, compared with the current rate of 6.2 percent.

This is not the first time Larson has proposed this legislation, but this year it stands a very good chance of passage in the House. The proposal had 54 co-sponsors when Larson first introduced it in 2015; now, it has more than 200 House co-sponsors – more than 85 percent of the Democratic majority.

Larson himself is the new chairman of the Social Security subcommittee of the House Ways and Means Committee. The new chairman of the powerful Ways and Means Committee, Massachusetts Democrat Richard Neal, is a co-sponsor of the bill.

Moreover, progressive support for Social Security expansion was an important campaign plank for many successful Democratic candidates in November’s midterm elections. And nearly every declared and potential Democratic presidential candidate has endorsed expansion of some type for Social Security.

The bill is not likely to become law while Republicans control the Senate and White House. But Larson plans to hold hearings on the bill this year in Washington and around the country – the first congressional hearings focused on expansion in 50 years.

That will provide an important forum to help educate the public and could puncture many of the toxic myths that have taken hold about Social Security in recent decades. Among the most pernicious of those myths is that Social Security is headed for bankruptcy, and that benefits will not be there for young people when their retirement rolls around.

“We need to educate and unmask so many of these myths,” Larson told me in an interview. “We need to talk about why Social Security is an earned benefit and not an entitlement. Certainly it is something you are entitled to, but the word makes Social Security sound like a poverty program or a handout. Nothing roils people who have been paying into the program their entire lives more.”


The myths are built on one very important kernel of truth. Social Security does face a shortfall in revenue needed to pay scheduled benefits. If Congress fails to act, Social Security benefits will be cut nearly 25 percent in 2034 – just 15 years from now. This would be a financial disaster for current and future retirees, and it would undermine trust in the program.

Larson’s bill puts Social Security back into balance over the next 75 years – the period of time the program is required by federal law to project its finances. On the benefit side, it provides an increase for all enrollees equivalent to 2 percent of the average benefit, about $30 per month. It would shift to a more generous annual cost-of-living adjustment formula that is more sensitive to medical inflation and other costs disproportionately affecting seniors. The bill would also beef up the special minimum benefit paid to low-income retirees.

For higher-income seniors, the bill also includes, effectively, a benefit boost in the form of a tax cut.

Beneficiaries with higher income – usually from work, a pension or drawdowns from tax-deferred saving – often wind up paying income taxes on their Social Security benefits.

The proportion of benefit that is taxable is determined using a formula called “provisional income” – your adjusted gross income (excluding Social Security benefits), plus non-taxable interest and half of your Social Security benefits. If your provisional income is $25,000 to $34,000 (single return) or $32,000 to $44,000 (joint return), up to 50 percent of your Social Security benefit must be counted as adjusted gross income. If your provisional income is more than $34,000 on a single return or $44,000 on a joint return, 85 percent must be added to AGI.

The Larson bill would replace those thresholds with $50,000 (single filer) and $100,000 (joint filers), and if provisional income is above those levels, up to 85 percent is counted in adjusted gross income.

Despite the bill’s strong odds in the House, the Republican-controlled Senate is not likely to take it up this year – although Larson says he is reaching out. He also has put feelers out to the White House, noting that President Donald Trump opposed cuts to Social Security during the 2016 campaign.

“I think we’re coming to some common-sense solutions,” Larson said. “Especially when one of the biggest champions of protecting Social Security is the President of the United States.”

(This story corrects payroll tax cap figure in third paragraph to $132,900 for 2019)

Navy Veteran Who Remained Within 12 Nautical Miles of Vietnam’s Territorial Limits Entitled to Presumption of Service-Connection for Diseases Related to Agent Orange Exposure (Fed. Cir.)

February 27, 2019

Courtesy of NAELA News:

Congress created a presumption of service-connection for certain diseases affecting veterans who “served in the Republic of Vietnam” and were exposed to an herbicide agent commonly known as “Agent Orange” (see 38 U.S.C. Stat. 1116). Alfred Procopio, Jr. sought entitlement to service-connection for prostate cancer and diabetes mellitus based on his Navy service aboard the U.S.S. Intrepid from 1964-1967. Both diseases are included within the purview of section 1116. Procopio, however, was never deployed on land and remained in the territorial waters offshore. The Department of Veterans Affairs denied Procopio’s application. The Board of Veterans’ Appeals further denied Procopio service-connection. The United States Court of Appeals for Veterans Claims affirmed the denial, concluding that Procopio could not meet the “foot-on-land” requirement of the statute, subsequent interpreting regulations, and controlling precedent.

Procopio appealed. The Court of Appeals for the Federal Circuit reversed. The court held that the unambiguous language of Stat. 1116 and corresponding regulation includes the 12 nautical miles of offshore waters within the legally recognized territorial limits of the Republic of Vietnam, entitling Procopio to a presumption of service-connection for his diseases.

Procopio v. Wilkie, 2019 WL 347202 (Fed. Cir. Jan. 29, 2019)

Get Medicare’s New, And First Official, “What’s Covered” App!

February 27, 2019

Is your medical item or service covered by Medicare Part A and/or Part B? Now there’s a quick way to check!

Medicare’s free “What’s Covered” app delivers accurate cost and coverage information right on your smartphone. Now you can quickly see whether Medicare covers your service in the doctor’s office, the hospital, or anywhere else you use your phone. The “What’s Covered” app is the only official U.S. government Medicare app.

The app delivers general cost, coverage and eligibility details for items and services covered by Medicare Part A and Part B.  Search or browse to learn what’s covered and not covered; how and when to get covered benefits; and basic cost information. You can also get a list of covered preventive services.

The “What’s Covered” app helps you understand the health care coverage offered by Original Medicare Part A (Hospital Insurance) and Part B (Medical Insurance).

Use this federal government app to:

  • Get answers to your Medicare coverage questions
  • See how much you’ll pay
  • Learn about the covered items and services
  • See helpful notes and where to get more information
  • Browse free preventive services

Original Medicare Items & Services: Find out exactly what your Medicare coverage has to offer by getting answers to questions like:

  • When are mammograms covered?
  • Are specialists or home health care covered?
  • Will Medicare pay for crutches, walkers, or diabetes testing supplies?

Preventive Health Coverage: Medicare coverage includes many common preventive services at no cost to you. Preventive services can help keep you healthy by finding health problems early, when treatment works best, and can keep you from getting certain diseases.

What’s covered will help you answer questions like:

  • Will my Medicare benefits cover a service to help me stop smoking?
  • Can I get a regular cervical cancer screening?
  • How often will my Medicare coverage allow me to get a bone mass measurement?
  • Ask your doctor or other health care provider which preventive services (like screenings, shots, and tests) you need to get.

Part A & Part B Costs: Medicare Part A and Part B cover certain medical services and supplies in hospitals, doctors’ offices, and other health care settings.

Part A hospital insurance coverage helps pay for inpatient care in a hospital, inpatient care in a skilled nursing facility, hospice care, home health care, or inpatient care in a religious non-medical health care institution. Copayments, coinsurance, or deductibles may apply for each service covered by Part A.

Part B medical insurance coverage supports medically necessary doctors’ services, outpatient care, home health services, durable medical equipment, mental health services, preventive services, and other medical services. Under Original Medicare, if the Part B deductible applies, you must pay all health care costs (up to the Medicare-approved amount) until you meet the yearly Part B deductible. After your deductible is met, Medicare begins to pay its share and you typically pay 20% of the Medicare-approved amount of the service, if the doctor or other health care provider accepts assignment. There’s no yearly limit for what you pay out-of-pocket.

For some items and services, you must meet eligibility criteria or you may be responsible for paying all costs. Your doctor or other health care provider may recommend you get services more often than Medicare covers. Or, they may recommend services that Medicare doesn’t cover. If this happens, you may have to pay some or all of the costs. Ask questions so you understand why your doctor is recommending certain services and whether Medicare will pay for them.

Use the “What’s Covered” app to answer questions like:

  • How much will I pay for prescription drugs included in Medicare Part B coverage?
  • Does the Part B deductible apply for cardiac rehabilitation?
  • What percentage of the Medicare-approved amount will I need to pay for colorectal cancer screenings?

Medicare Advantage Plans: If you have a Medicare Advantage Plan or other Medicare health plan, you have the same basic health care coverage as people who have Original Medicare, but the rules vary by plan. Some Medicare Advantage Plans offer extra benefits that Original Medicare doesn’t cover – like vision, hearing, or dental. Check with the plan or search in the App Store to see if the plan has a similar mobile application.

Download Medicare’s official “What’s Covered” app — available for free in both the Apple App Store and Google Play.    The “What’s Covered” is part of the agency’s eMedicareinitiative—launched in 2018—which is aimed at empowering beneficiaries with cost and quality information.

The New Tax Law Means It’s Time to Review Your Estate Plan

February 27, 2019

While the new tax law doubled the federal estate tax exemption, meaning the vast majority of estates will not have to pay any federal estate tax, it doesn’t mean you should ignore its impact on your estate plan.

In December 2017, Republicans in Congress and President Trump increased the federal estate tax exemption to $11.18 million for individuals and $22.36 million for couples, indexed for inflation. (For 2019, the figures are $11.4 million and $22.8 million, respectively.) The tax rate for those few estates subject to taxation is 40 percent.

While most estates won’t be subject to the federal estate tax, you should review your estate plan to make sure the changes won’t have other negative consequences or to see if there is a better way to pass on your assets. One common estate planning technique when the estate tax exemption was smaller was to leave everything that could pass free of the estate tax to the decedent’s children and the rest to the spouse. If you still have that provision in your will, your kids could inherit your entire estate while your spouse would be disinherited.

For example, as recently as 2001 the federal estate tax exemption was a mere $675,000. Someone with, say, an $800,000 estate who hasn’t changed their estate plan since then could see the entire estate go to their children and none to their spouse.

Another consideration is how the new tax law might affect capital gains taxes. When someone inherits property, such as a house or stocks, the property is usually worth more than it was when the original owner purchased it. If the beneficiary were to sell the property, there could be huge capital gains taxes. Fortunately, when someone inherits property, the property’s tax basis is “stepped up,” which means the tax basis would be the current value of the property. If the same property is gifted, there is no “step up” in basis, so the gift recipient would have to pay capital gains taxes. Previously, in order to avoid the estate tax you might have given property to your children or to a trust, even though there would be capital gains consequences. Now, it might be better for your beneficiaries to inherit the property.

In addition, many states have their own estate tax laws with much lower exemptions, so it is important to consult with your attorney to make sure your estate plan still works for you.

Scans Show Female Brains Remain Youthful As Male Brains Wind Down

February 26, 2019

Women tend to have more youthful brains than their male counterparts — at least when it comes to metabolism.

While age reduces the metabolism of all brains, women retain a higher rate throughout the lifespan, researchers reported Monday in the journal Proceedings of the National Academy of Sciences.

“Females had a younger brain age relative to males,” says Dr. Manu Goyal, an assistant professor of radiology and neurology at Washington University School of Medicine in St. Louis. And that may mean women are better equipped to learn and be creative in later life, he says.

The finding is “great news for many women,” says Roberta Diaz Brinton, who wasn’t connected with the study and directs the Center for Innovation in Brain Science at the University of Arizona Health Sciences. But she cautions that even though women’s brain metabolism is higher overall, some women’s brains experience a dramatic metabolic decline around menopause, leaving them vulnerable to Alzheimer’s.

The study came after Goyal and a team of researchers studied the brain scans of 205 people whose ages ranged from 20 to 82. Positron emission tomography scans of these people assessed metabolism by measuring how much oxygen and glucose was being used at many different locations in the brain.

The team initially hoped to use the metabolic information to predict a person’s age. So they had a computer study how metabolism changed in both men and women.

Then they reversed the process and had the computer estimate a person’s age based on brain metabolism data.
The approach worked. “It was highly predictive of age,” Goyal says.

Even so, for some people there was a big difference between their brain age and their chronological age. And Goyal says the team wondered whether this difference was more pronounced in men or women.

So they checked.

“When we looked at males vs. females, we did find an effect,” Goyal says. “We found in fact that females had a younger brain age relative to males.”

Women’s brains appeared about four years younger, on average. But it’s still not clear why.

“It makes us wonder, are hormones involved in brain metabolism and how it ages?” Goyal says. Or is it something else, like genetics?

Whatever the cause, higher metabolism may give female brains an edge when it comes to learning and creativity in later life, Goyal says.

“But it might also set up the brain for certain vulnerabilities,” he says, including a higher risk of developing Alzheimer’s disease.

Brinton sees it differently. She thinks women’s higher brain metabolism protects them from Alzheimer’s when they are young.

But menopause, she says, causes an “energy transition in the brain,” one that affects the brain metabolism of some women far more than others.

Brinton’s research suggests that the women most likely to experience a dramatic drop are those who carry a gene variant called APOE4, which increases a person’s risk of developing Alzheimer’s, or those who have risk factors for Type 2 diabetes.

“It’s those women who will begin to develop the pathology of Alzheimer’s disease earlier,” she says.

As brain metabolism decreases in these women, Brinton says, there’s an increase in the sticky proteins that are associated with Alzheimer’s.

“This is a process that starts very early in the aging process for some women,” Brinton says. “And we can intervene.”

How? The steps are a lot like those intended to prevent diabetes, Brinton says. They include diet, exercise and drugs that help the brain and body metabolize sugar.

Bill Would Prohibit Waiting Lists For Community-Based Services

February 5, 2019


by Michelle Diament | January 24, 2019

Community-based services are often much harder to obtain than access to institutional care, but there is a new push underway to change that.

A bill introduced in Congress this month would ensure that people with disabilities who are eligible for institutional care would have the right to access those same services in their own homes, if they choose.

The legislation known as the Disability Integration Act would prohibit states and insurers that cover long-term services and supports from imposing any policies, cost caps, waiting lists or other limitations to community-based offerings that are different from those in place for institutional care.

“Right now a person who needs long-term services and support has a very limited choice where they can receive services and it’s irrational and expensive,” said U.S. Sen. Chuck Schumer, D-N.Y., who introduced the measure, at a recent event with disability advocates. “This bill is ultimately a civil rights bill. At its core it’s about one simple thing, people with disabilities must be treated equally to those without.”

Effectively, backers say that the legislation would strengthen the integration mandate within the Americans with Disabilities Act and bolster the Supreme Court’s 1999 ruling in Olmstead v. L.C. which found that people with disabilities have the right to access services in the community.

Under the measure, states and insurers would be responsible for establishing adequate pay rates for support workers to ensure that workforce issues do not impede access to community-based services. Additionally, they would be required to inform individuals with disabilities of options to receive services in the community before institutionalizing them. And, those who choose to be institutionalized would need to be notified regularly of the opportunity to be supported in the community.

The legislation has bipartisan support in the Senate and in the House of Representatives where it was introduced by Rep. Jim Sensenbrenner, R-Wis.

This is not the first time that the Disability Integration Act has been brought forward, but advocates say they have high hopes that it can gain approval this time around. They are urging the House to pass the bill by July 26, the anniversary of the ADA.

“The midterm elections changed everything. With Democrats taking over the House, there is a real opportunity to pass the bill on the House side this year,” said Kelly Buckland, executive director of the National Council on Independent Living. “As someone who uses attendant services and has spent time in a nursing facility, I can’t begin to express how exciting it is that this is finally going to happen.”