The Anti-Alzheimer’s BOLD Act Isn’t. But It Could Be A Step In The Right Direction

February 5, 2019

Last week, President Trump signed into law the BOLD Infrastructure for Alzheimer’s Act, a measure aimed at building a public health model to fight Alzheimer’s disease and other dementias. The law would authorize up to $100 million over five years to improve public education, support health and social service agencies’ dementia initiatives, and collect and disseminate data about cognitive decline.

There is a very important idea behind this new law: Helping state and local governments, Indian tribes, and the federal government work together to promote dementia education and caregiver support, as well as collect better data on these diseases. But BOLD’s unusual focus on public health, it’s extremely broad mandate, and questions about the adequacy of funding suggest there may be far less to the law than meets the eye.

It gives enormous discretion to the Secretary of Health and Human Services to decide which programs get the money. That worries advocacy groups that focus on the needs of people with dementia and their families. They fear they will be pushed out of the way by more influential organizations such as the Alzheimer’s Association, whose focus is primarily on funding drug research. Past experience with federal dementia initiatives gives them good reason to be concerned.

Will states participate?

BOLD’s benefits also may be limited because states are required to provide a 30 percent match for any federal funding. The Secretary can waive that requirement if he determines it would “result in hardship” but it often is hard for states to come up with matching dollars, especially for programs that don’t show an immediate payoff or, like this, are funded for only a limited period of time.

The law gives authority for operating this initiative to the Centers for Disease Control, which has lots of hands-on experience with building public health programs. As it happens, CDC already runs an Alzheimer’s Disease and Healthy Aging Program.

And, happily, the law gives attention to the need for caregiver support and public education as well as disease “interventions” which could mean, well, almost anything from indirect funding for drug research to improving caregiving practices.

The public health choice

Building a public health framework is in some ways a curious choice. Normally, public health initiativesare aimed at changing the behavior of consumers at a community level or reducing environmental risk factors such as assuring safe drinking water. Public health   often focuses on infectious diseases. For instance, the CDC encourages people to get flu shots or measles vaccines. Or it attempts to improve community health by encouraging people to change their lifestyles. For instance, it has initiatives to reduce smoking, alcohol or opiod abuse, or obesity.

But with BOLD I worry about the square-peg-in-the-round-hole problem. Dementias certainly are not infectious. And if they are affected by behaviors, the connections are poorly understood, at least for most forms of the disease. We know quite a lot about vascular dementia, often caused by strokes that are preventable by changes in lifestyle. But we know much less about what activities or environmental factors trigger Alzheimer’s. And we know even less about behavioral or environmental causes of other dementias such as Lewy Body disease.

So while calling dementia a public health crisis sounds like a positive call to action, it isn’t clear how such a framework will lower the risk of these brain diseases.

A modest shift from drug research

Still, acknowledging the needs of those with dementia and their family members is important. And it is a change from most previous federal initiatives, which have focused on lavishing public money on drug research and largely ignored those who already have the disease and their families.

Last year, the National Institutes of Health funded $1.9 billion in Alzheimer’s research, and Congress gave it more than $400 million more this year. The total of more than $2.3 billion represents about 5 percent of the total NIH budget. Yet despite this massive increase in funding, there remains no drug treatment or cure for Alzheimer’s, to say nothing of dozens of other dementias.

And about money. While supporters promote BOLD as a $100 million initiative, the funds will be spread over five years. And Congress still must separately appropriate the money before anything can be spent. And if this law is typical, the program will receive much less than the maximum.

Still, those living with dementia and their families desperately need support, including caregiving training, respite care, and better information about managing these diseases. If used properly, the BOLD Act could take some first steps towards those goals.

By Howard Gleckman

Does Your Estate Plan Include Your Pets?

February 5, 2019

Have you considered your pet or pets when planning your estate? If not, you should, according to The Humane Society of the United States, the nation’s largest animal protection organization.

Pets usually have shorter life spans than humans, but people don’t always include their pets in their estate plans. If a pet owner doesn’t make plans for his or her pet, the animal can be left homeless and end up in an animal shelter.

To help pet owners ensure that that their wishes for their pets’ long-term care won’t be forgotten, misconstrued or ignored, The Humane Society has created a printable fact sheet, “Providing for Your Pet’s Future Without You.” The five-page fact sheet, which is available in English and Spanish, provides sample legal language for including pets in wills and trusts, plus suggestions on protecting pets through a power of attorney.

The Humane Society says that all too often, people erroneously assume that a long-ago verbal promise from a friend, relative or neighbor to provide a home for a pet will be sufficient years later. Even conscientious individuals who include their pets in their wills may neglect to plan for contingencies in which a will might not take effect, such as in the event of severe disability or a protracted will challenge.

For American Workers, 4 Key Retirement Issues to Watch in 2019

February 5, 2019

NAELA News:

By Mark Miller

John Chiang, the California state treasurer, spoke at a news conference Wednesday at Loyola Law School in Los Angeles. “The goal is to make sure we stem the tide of the retirement crisis and help Californians realize the dream of a golden retirement,” he said in an interview.
Monica Almeida for The New York Times

It’s going to be a busy year in Washington and state capitals for policymakers working to improve the retirement security of millions of Americans.

New retirement savings options will be on the horizon in 2019 for millions who don’t have access to workplace 401(k) plans. Meanwhile, Congress will try to agree on a plan to avert sharp cuts in traditional pension benefits for over a million workers. The long-running battle over regulation to protect investors will enter a new phase when the Securities and Exchange Commission issues new “best interest” rules governing investment advice. And the House of Representatives could take up legislation to expand Social Security.

Here is a look at crucial retirement policy topics to watch in the year ahead.

Workplace retirement savings plans have proved to be the most effective route to help savers, mainly thanks to features like automatic enrollment, regular payroll deductions and matching employer contributions. Yet one-third of private sector workers had no access to an employer-sponsored retirement plan in 2016, according to the Government Accountability Office. The coverage shortfall is greatest among low-income workers and people working for small companies.

But 2019 will be a turning point in covering more workers.
Some states are starting programs that automatically sign up workers who don’t have workplace 401(k) accounts or Individual Retirement Accounts. Over time, employers in many of these states will be required to set up automatic payroll deductions for these accounts and enroll workers, although they will not need to make matching contributions.

Oregon started its plan this year; California and Illinois will start in 2019; Vermont, Maryland and Connecticut are preparing programs; and New York has passed legislation and is establishing a board to oversee the start of a state program over the next two years. And this week, New Jersey’s General Assembly passed legislation authorizing the creation of a program (the state’s Senate is expected to consider the bill early next year).

The states that have approved plans could eventually extend coverage to 15 million workers, AARP estimates.

California’s plan alone could cover 7.5 million workers, officials there say. The CalSavers program is in a pilot phase through the end of June, and will be open to all employers beginning July 1; mandatory compliance will phase in with three waves based on employer size.

“The goal is to make sure we stem the tide of the retirement crisis and help Californians realize the dream of a golden retirement,” says John Chiang, the state treasurer. “It’s not an easy task, because the current marketplace has failed.”

Meanwhile, Congress will take up legislation next year that would make it easier for employers to band together to join a single 401(k) plan that they can offer to employees. These “open multiple-employer plans” would be offered by private plan custodians; the aim would be to offer employers low-cost plans featuring simplified paperwork.

How quickly would these multiple-employer plans be offered if legislation were approved? “Plan providers will need a year to gear up and get infrastructure in place,” predicts Kathleen Coulombe, a vice president at the American Council of Life Insurers, which supports the legislation. “I’d expect to see plans launch starting in 2020.”

Which approach is better — auto-I.R.A. or a multiple-employer plan? “They are both good ideas, and there’s no inconsistency between them,” says Mark Iwry, one of the architects of a national auto-I.R.A. program that he worked to enact during his time as a senior adviser to the Treasury secretary in the Obama administration. The national auto-I.R.A. would require employers without their own retirement plan to enroll workers.

Mr. Iwry, currently a nonresident senior fellow at the Brookings Institution, sees the two ideas as complementary, with auto-I.R.A.s serving as starter accounts likely to lead many more employers to adopt 401(k) plans.

But Mr. Iwry said the market already had achieved much of the economy of scale and reduced costs promised by multiple-employer plans, with companies sponsoring identical plans using a single low-cost investment lineup and common record-keeping and administration. “The proposed open M.E.P. legislation is desirable and long overdue,” he said. “But in their potential to expand coverage, open M.E.P.s don’t hold a candle to auto-I.R.A.s.” That is because auto-I.R.A. programs achieve big gains in plan participation through mandatory employer participation features and automatic worker enrollment; with open M.E.P.s, takeup will depend on whether financial service providers market them aggressively, and employers’ appetite to sign up. What’s more, not all of these multiple-employer plans will use auto-enrollment.

Mr. Iwry still holds out legislative hope for a national auto-I.R.A. program, noting that the bill’s longtime lead Democratic sponsor, Representative Richard Neal, of Massachusetts, is about to become chairman of the powerful House Ways and Means committee.

Saving One Million Pensions

A special congressional committee is racing to head off an insolvency crisis, one that could lead to sharp cuts in pension benefits for over a million workers and retirees, and sink a federally sponsored insurance backup program.

The problem centers on so-called multiemployer pension plans. Over 10 million workers and retirees are covered by 1,400 of these plans, which are created under collective bargaining agreements and jointly funded by groups of employers in industries like construction, trucking, mining and food retailing.

Plans covering 1.3 million workers and retirees are severely underfunded — the result of stock market crashes in 2001 and 2008-9, and industrial decline that led to consolidation and sliding employment. Cheiron Inc., an actuarial consulting firm, recently forecast that 121 plans might fail within 20 years. Plans are underfunded by a total of $48.9 billion, the firm estimated. Three plans alone account for 65 percent of all unfunded liabilities, led by the Teamsters’ Central States fund, which is falling short by $22.9 billion.

Meanwhile, the Pension Benefit Guaranty Corporation, the federally sponsored insurance backstop for defunct plans, projects that its multiemployer insurance program will run out of money by the end of the 2025 fiscal year, absent reforms.

Congress approved an overhaul in 2014, the Multiemployer Pension Reform Act, but the legislation has faced strong resistance from retiree organizations, consumer groups and some labor unions.

The act allows troubled plans to seek government permission to make deep benefit cuts, if they can show that the reductions would prolong the life of the plan. Benefit cuts vary widely depending on what a plan proposes and the tenure of the worker — but a worker with 25 years of service and a $2,000 monthly benefit could see that benefit cut to as low as $983, according to a cutback calculator created by the Pension Rights Center, an advocacy group. To date, nine plan restructurings have been approved.

This year, the special congressional committee appointed to create a replacement for the pension reform act missed an end-of-November deadline to issue its recommendation. But a draft proposal raises the guaranteed minimum benefits paid by the Pension Benefit Guaranty Corporation if a plan fails. It also would inject federal funds into the agency — perhaps $3 billion annually — to expand its partition program, which allows it to take on benefit payments to so-called orphans — people who earned benefits from employers who have dropped out of plans, often because they have gone out of business.

“It would rely less on cutting benefits, and more on raising money from existing pension plans and taxpayers,” says Joshua Gotbaum, a guest scholar at the Brookings Institution and a former director of the federal pension backstop.

The sticking points in the discussion have included the assumptions used to measure plan liabilities, and how much respective stakeholders, including the government, should contribute to maintain a viable multiemployer system, says Karen Friedman, executive vice president of the Pension Rights Center. “We’re hoping they can find a fair, comprehensive solution that can save these plans, the P.B.G.C. and protect workers and retirees.”

Protecting Investors From Conflicted Advice

The long-running battle to require brokers to look out for the best interests of clients will continue in 2019.
The S.E.C. is moving toward adoption of a “regulation best interest” standard following the end this year of an advice standard created by the Obama-era Labor Department. That regulation, which required advice on retirement accounts to meet fiduciary standards, was opposed by the financial services and insurance industries, which argued that it made advising smaller investors too costly.

The S.E.C. rule would require brokers to put their customers’ financial interests ahead of their own, but it does not require them to act as fiduciaries. The rule also would require disclosures to clients of any potential conflicts, and it reaffirms existing higher standards for registered investment advisers.

The draft regulation has come under fire from consumer advocates who note that it does not clearly define the term “best interest,” and that the proposed disclosure forms are confusing for investors.

“There is a real need to simplify the disclosure forms so that they communicate effectively to investors the information that they actually need to make decisions,” says Cristina Martin Firvida, vice president for financial security and consumer affairs at AARP.

Expanding Social Security

Proposals to overhaul Social Security by progressives are likely to get a hearing in the new Democratic-controlled House.

Most of the winning Democratic candidates who flipped 40 congressional seats in the midterm elections ran on expanding Social Security benefits, said Nancy Altman, president of Social Security Works, a progressive advocacy group. And the likely new chairman of the Ways and Means Social Security Subcommittee, Representative John B. Larson, Democrat of Connecticut, is the author of expansion legislation that has more than 170 co-sponsors in the House, including Mr. Neal, the incoming Ways and Means chairman.

“The Larson bill certainly will get a hearing, and there’s a substantial chance it will move out of committee and even get a vote on the House floor,” Ms. Altman predicted. “That will really elevate the issue and put a spotlight on the Senate and the White House.”

Mr. Larson’s bill includes a 2 percent across-the-board increase in benefits, a more generous annual cost-of-living adjustment and a higher minimum benefit for low-income workers. The bill would pay for the expansion by lifting the cap on wages subject to taxation and a gradual phase-in of a higher payroll tax rate.

Social Security faces a long-run financial imbalance — the program is now spending more than it takes in annually in payroll taxes. The Social Security trustees project that the program will be unable to pay full benefits beginning in 2034; unless Congress takes action, benefits would be slashed by about 25 percent. The funding proposal in Mr. Larson’s bill also would restore the program’s long-range financial balance.

Correction: Dec. 20, 2018
Because of an editing error, an earlier version of a picture caption on this article misstated the day of a news conference at Loyola Law School. The conference was on Wednesday, not Monday.

There is another pre-existing conditions problem — for seniors

February 5, 2019

NAELA News:

Pre-existing conditions are in the news again, now that a federal judge’s ruling could wipe out the Affordable Care Act. But there’s been a similar issue all along that’s drawn less attention: Seniors with pre-existing conditions can be denied coverage in many cases when they apply for Medicare supplemental insurance policies, or Medigap.

The big picture: The Affordable Care Act prohibits most private health plans from denying coverage to individuals based on their medical history. Medicare and Medicaid also cover all eligible individuals regardless of their medical history. But Medigap doesn’t have this protection, at least not fully. The problem could be addressed, but with the expected side effect: premiums would go up.

Background: More than 1 in 4 people in traditional Medicare have a Medigap policy to help beneficiaries cover out-of-pocket costs, which are not capped under Medicare.

How did Medigap fall under the radar on pre-existing conditions? It happened because Congress had already dealt with the issue — but in a way that left huge holes — and the ACA was aimed at the parts of the private health insurance market that didn’t already have protections.

  • In 1990, Congress established consumer protections for Medigap, but with limited protections for people with pre-existing conditions.
  • Medigap insurers have to issue a policy without regard to pre-existing conditions during the first six months of enrolling in Medicare Part B at age 65 or older, after an employer terminates retiree coverage, and after a brief trial period in a Medicare Advantage plan, and other narrowly defined circumstances.
  • Otherwise, Medigap insurers can and do deny applications from seniors with pre-existing conditions.

There’s no hard data on how many people have been affected, but we know anecdotally that it happens. Here’s a good piece by my Kaiser Family Foundation colleague Tricia Neuman about a friend who was turned down for Medigap coverage because of his pre-existing condition.

And pre-existing conditions aren’t exactly rare among seniors. My best estimate is that 65% of Medicare beneficiaries have a condition Medigap insurers might use to deny coverage.

  • That’s based on how many seniors have the kinds of conditions that have been targeted by insurers: diabetes, cancer, congestive heart failure, chronic lung/pulmonary disorders, Alzheimers and related dementias, end-stage renal disease, coronary artery disease, rheumatoid arthritis, mental disorders, osteoporosis and stroke.

Between the lines: States can go beyond minimum federal protections by prohibiting Medigap insurers from underwriting during an annual open enrollment period (meaning they can’t use pre-existing conditions to determine whether to cover someone and under what terms).

But just 4 states do so for seniors. And while many other states go beyond the minimum federal requirements, the circumstances are typically narrowly defined.

Outside the 4 states, people on Medicare have a limited window of opportunity to buy a Medigap policy, and if they miss the window, they may be denied a policy due to a pre-existing condition. This potentially affects:

  • Some of the 6 million people in traditional Medicare without supplemental insurance.
  • Some of the 20 million enrollees in Medicare Advantage who may at some point in their lives want to switch to traditional Medicare, with the added protection of a Medigap policy.
  • Other adults on Medicare besides seniors — those under age 65 with serious disabilities with no protections for pre-existing conditions in some states, even when they first go on Medicare.
  • People on Medicare who now have a Medigap policy who may be unable to switch to a lower-premium policy sold by another company if they have a pre-existing condition.

The bottom line: The problem is fixable. Congress could require Medigap insurers in all states to accept people on Medicare, including those with pre-existing conditions, during an annual open enrollment period. Or it could add an out-of-pocket limit to traditional Medicare, mitigating the need for supplemental insurance.

But, as always, there would be tradeoffs, in the form of increased Medigap premiums and higher federal Medicare spending.

Key Elder Law Numbers for 2019: Our Annual Roundup

February 4, 2019

Below are figures for 2019 that are frequently used in the elder law practice or are of interest to clients.

Medicaid Spousal Impoverishment Figures for 2019

The new minimum community spouse resource allowance (CSRA) is $25,284 and the maximum CSRA is $126,420. The maximum monthly maintenance needs allowance is $3,160.50. The minimum monthly maintenance needs allowance remains $2,057.50 ($2,572.50 for Alaska and $2,366.25 for Hawaii) until July 1, 2019.

Medicaid Home Equity Limits

Minimum: $585,000

Maximum: $878,000

For CMS’s complete chart of the 2019 SSI and Spousal Impoverishment Standards, click here.

Income Cap

The income cap for 2019 applicable in “income cap” states is $2,313 a month.

Gift and estate tax figures

Federal estate tax exemption: $11.4 million for individuals, $22.8 million for married couples

Lifetime tax exclusion for gifts: $11.4 million

Generation-skipping transfer tax exemption: $11.4 million

Annual gift tax exclusion: $15,000 (unchanged)

Long-Term Care Premium Deductibility Limits for 2019

The Internal Revenue Service has announced the 2019 limitations on the deductibility of long-term care insurance premiums from income. Any premium amounts above these limits are not considered to be a medical expense.

Attained age before the close of the taxable year Maximum deduction
40 or less $420
More than 40 but not more than 50 $790
More than 50 but not more than 60 $1,580
More than 60 but not more than 70 $4,220
More than 70 $5,270

Benefits from per diem or indemnity policies, which pay a predetermined amount each day, are not included in income except amounts that exceed the beneficiary’s total qualified long-term care expenses or $370 per day (for 2019), whichever is greater.

For these and other inflation adjustments from the IRS, click here.

Medicare Premiums, Deductibles and Copayments for 2019

  • Part B premium: $135.50/month (was $134)
  • Part B deductible: $185 (was $183)
  • Part A deductible: $1,364 (was $1,340)
  • Co-payment for hospital stay days 61-90: $341/day (was $335)
  • Co-payment for hospital stay days 91 and beyond: $682/day (was $670)
  • Skilled nursing facility co-payment, days 21-100: $170.50/day (was $167.50)

Part B premiums for higher-income beneficiaries:

  • Individuals with annual incomes between $85,000 and $107,000 and married couples with annual incomes between $170,000 and $214,000 will pay a monthly premium of $189.60.
  • Individuals with annual incomes between $107,000 and $133,500 and married couples with annual incomes between $214,000 and $267,000 will pay a monthly premium of $270.90.
  • Individuals with annual incomes between $133,500 and $160,000 and married couples with annual incomes between $267,000 and $320,000 will pay a monthly premium of $352.20.
  • Individuals with annual incomes between above $160,000 and married couples with annual incomes above $320,000 will pay a monthly premium of $433.40.
  • Individuals with annual incomes above $500,000 and married couples with annual incomes above $750,000 will pay a monthly premium of $460.50

High-earner premiums differ for beneficiaries who are married but file a separate tax return from their spouse. Those with incomes greater than $85,000 and less than $415,000 will pay a monthly premium of $433.40. Those with incomes greater than $415,000 will pay a monthly premium of $460.50.

For Medicare’s “Medicare 2019 costs at a glance,” click here.

Social Security Benefits for 2019

The new monthly federal Supplemental Security Income (SSI) payment standard is $771 for an individual and $1,157 for a couple.

Estimated average monthly Social Security retirement payment: $1,461 a month for individuals and $2,448 for couples

Maximum amount of earnings subject to Social Security taxation: $132,900 (was $128,400)

For a complete list of the 2019 Social Security figures, go to: https://www.ssa.gov/news/press/factsheets/colafacts2019.pdf

Understanding Medicare’s Hospice Benefit

February 4, 2019

Medicare’s hospice benefit covers any care that is reasonable and necessary for easing the course of a terminal illness. It is one of Medicare’s most comprehensive benefits and can be extremely helpful to both the terminally ill individual and his or her family, but it is little understood and underutilized. Understanding what is offered ahead of time may help Medicare beneficiaries and their families make the difficult decision to choose hospice if the time comes.

The focus of hospice is palliative care, which means helping people who are terminally ill and their families maintain their quality of life. Palliative care addresses physical, intellectual, emotional, social, and spiritual needs while also supporting the terminally ill individual’s independence, access to information, and ability to make choices about health care.

To qualify for Medicare’s hospice benefit, a beneficiary must be entitled to Medicare Part A, and a doctor must certify that the beneficiary has a life expectancy of six months or less. If the beneficiary lives longer than six months, the doctor can continue to certify the patient for hospice care indefinitely. The beneficiary must also agree to give up any treatment to cure his or her illness and elect to receive only palliative care. This can seem overwhelming, but beneficiaries can also change their minds at any time. It’s possible to revoke the benefit and reelect it later, and to do this as often as needed.

Medicare will cover any care that is reasonable and necessary for easing the course of a terminal illness. Hospice nurses and doctors are on-call 24 hours a day, 7 days a week, to give beneficiaries support and care when needed. Services are usually provided in the home. The Medicare hospice benefit provides for:

  • Physician and nurse practitioner services
  • Nursing care
  • Medical appliances and supplies
  • Drugs for symptom management and pain relief
  • Short-term inpatient and respite care
  • Homemaker and home health aide services
  • Counseling
  • Social work service
  • Spiritual care
  • Volunteer participation
  • Bereavement services

Services are considered appropriate if they are aimed at improving the beneficiary’s life and making him or her more comfortable.

Because the beneficiary is electing palliative care over treatment, there are things the hospice benefit will not cover:

  • Treatment to cure the beneficiary’s illness.
  • Prescription drugs other than for symptom control or pain relief.
  • Care from a provider that wasn’t set up by the hospice team, although the beneficiary can choose to have his or her regular doctor be the attending medical professional.
  • Room and board. If the beneficiary is in a nursing home, hospice will not pay for room and board costs. However, if the hospice team determines that the beneficiary needs short-term inpatient care or respite care services, Medicare will cover a stay in a facility.
  • Care from a hospital, either inpatient or outpatient, or ambulance transportation unless it arranged by the hospice team. The beneficiary can use regular Medicare to pay for any treatment not related to the beneficiary’s terminal illness.

To download Medicare’s booklet on the hospice benefit, click here.

Jason Frank Presses Maryland Senate for “Aging in Place”

January 28, 2019

by Federico Salas, J.D.

On January 17, 2019, the Maryland Senate Finance Committee held a briefing that, among other topics, addressed the Home and Community Based Options Waiver (HCBOW). Jason A. Frank, Esq. specifically discussed the problems with the HCBOW that he expects will be fixed by current proposed legislation that:

  • Ensures that those people who lose Community First Choice services because of aging into Medicare can access the HCBOW and continue to receive services in the community; and
  • Eliminates the 22,000-person HCBOW Registry (waiting list) and serves eligible people who want services directly in the community without first entering a nursing home.

Resources from the Briefing

View the recording of the Senate Finance Committee briefing (presentations on the HCBOW begin at 1:23:00).

Download Mr. Frank’s presentation on Aging in Place (PDF, 24 pages).

Senate Bill 699

This is a summary of SB 699 regarding Maryland’s Community First Choice program:

The Problem

Marylanders who have community Medicaid, including Medicaid Expansion, and get long-term care services through the Community First Choice (CFC) program for as little help as having someone to assist in bathing and dressing at home, will lose all access to services if both: (1) they get Medicare and (2) they have too much income or assets. For individuals in 2019, CFC-Medicaid Expansion enrollees who have a monthly income between $791–$1,396 per month or assets greater than $2,000 are at risk of losing services. The Home & Community Based Options Waiver (HCBOW) program can provide the needed services to Marylanders with disabilities at home, but it has an 8-year, 22,000-person waiting list (“the Registry”).

Currently, there is no way for Marylanders living at home to bypass the 8-year, 22,000-person waiting list and stay at home, except by unnecessarily entering a nursing home. This means that the people who lose CFC when they get Medicare must choose between having to enter a nursing home or go without help for 8 years in order to continue getting the help that they need.

The Solution

Permit certain individuals who are affected, or will be affected, by “the CFC problem” to bypass the 8-year, 22,000-person waiting list in order maintain CFC services WITHOUT having to wait out the 8-year Registry or go through unnecessary and extremely costly nursing home admission just to transfer back out into the community.

Senate Bill 700

This is a summary of SB 700 regarding Maryland’s HCBOW:

The Problem

Most Marylanders who need as little help as having someone to assist them in bathing and dressing—but lack the money to pay for it—must choose between entering a nursing home or going without help for 8 years. The Maryland Medicaid Home & Community Based Services Options Waiver (HCBOW) program can provide the needed services to Marylanders with disabilities at home, but it has an 8-year, 22,000-person waiting list (“the Registry”). The HCBOW has an 8-year-long waiting list because the HCBOW is not required to meet the demand for services.

This year, the HCBOW can serve 5,659 individuals. When the Maryland Department of Health (MDH) readjusts HCBOW program availability every few years, it does not count eligible people on the 8-year, 22,000-person waiting list. In 2016, the MDH actually reduced program availability DESPITE the size of the 8-year, 22,000-person waiting list.

There is no way for Marylanders living at home to bypass the 8-year, 22,000-person waiting list and stay at home, except by unnecessarily entering a nursing home. While on the Registry, registrants are also in the dark for 8 years regarding where they are on the waiting list.

The Solution

  • Require registrants to come off the Registry at a rate that would eliminate the 8-year waiting list within 12 months;
  • Require the HCBOW to meet the projected “demand” for services;
  • Require services to HCBOW-eligible individuals within 30 days; and
  • Provide information for registrants about their exact place on the Registry or when they might expect to receive services.

Feds Order More Weekend Inspections Of Nursing Homes To Catch Understaffing

January 2, 2019

The federal government announced plans Friday to crack down on nursing homes with abnormally low weekend staffing by requiring more surprise inspections be done on Saturdays and Sundays.

The federal Centers for Medicare & Medicaid Services said it will identify nursing homes for which payroll records indicate low weekend staffing or that they operate without a registered nurse. Medicare will instruct state inspectors to focus on those potential violations during visits.

“Since nurse staffing is directly related to the quality of care that residents experience, CMS is very concerned about the risk to resident health and safety that these situations may present,” the agency said in a notification to state inspection offices.

The directive comes after a Kaiser Health News analysis found there are 11 percent fewer nurses providing direct care on weekends on average, and 8 percent fewer aides.

Residents and their families frequently complain the residents have trouble getting basic help — such as assistance going to the bathroom — on weekends. One nursing home resident in upstate New York compared his facility to a weekend “ghost town” because of the paucity of workers.

Richard Mollot, executive director of the Long Term Care Community Coalition, an advocacy group in Manhattan, welcomed the new edict but said it was only necessary because state inspectors have not been properly enforcing the rules already on the books.

“The basic problem is the states don’t take this seriously,” Mollot said. “How many studies do we have to have, year after year, decade after decade, saying it all comes down to staffing, and there are very few citations for inadequate staffing and virtually all of them are identified as not causing any resident harm?”

CMS said it will identify potential violators by analyzing payroll records that nursing homes are now required to submit. Those records, which became public this year, showed lower staffing than what facilities had previously told inspectors during their visits, according to the KHN analysis.

“CMS takes very seriously our responsibility to protect the safety and quality of care for our beneficiaries,” CMS Administrator Seema Verma said in a statement.

The nursing home industry criticized the heightened scrutiny.

“Unfortunately, today’s action by CMS will enforce policies that makes it even more difficult to meet regulatory requirements and hire staff,” said Dr. David Gifford, senior vice president of quality and regulatory affairs at the American Health Care Association, an industry trade group, in a written statement. “Rather than taking proactive steps to address the national workforce shortage long-term care facilities are facing, CMS seems to be focusing on a punitive approach that will penalize providers and make it harder to hire staff to meet the shared goal of increasing staffing.”

Currently, a tenth of inspections must occur during “off hours,” which can be either a weekend, or during a weekday before 8 a.m. or after 6 p.m. But for facilities that Medicare identifies as having lower weekend staffing, half of those off-hour inspections—or 5 percent of the total — must be performed on Saturdays or Sundays.

Medicare requires nursing homes to have a registered nurse on site for at least eight hours every day, but according to the payroll records, a quarter of nursing homes reported no registered nurses available at least one day during a three-month period. Since July, Medicare’s Nursing Home Compare website for consumers has highlighted homes that lack sufficient registered nurses and lowered their star ratings. Nursing Home Compare has downgraded ratings for 1,402 of 15,600 facilities for gaps in registered nurse staffing, records show.

The new directive instructs inspectors to more thoroughly evaluate staffing at facilities Medicare flags. The edict does not mean a flurry of sudden inspections. Instead, Medicare wants heightened focus on those nursing homes when inspectors come for their standard reviews, which take place roughly once a year for most facilities.

But what may appear to be staffing scarcities in payroll records may instead be clerical problems in which nurse hours are not properly recorded, say some nursing home officials.

Katie Smith Sloan, president of LeadingAge, an association of nonprofit providers of aging services, said in a statement that some homes are still struggling to adapt to the new data collection rules.

“We’ve been voicing our concerns to CMS and will continue to do so,” she said.

KHN’s coverage of these topics is supported by John A. Hartford Foundation and The SCAN Foundation

CFPB Releases “Managing Someone Else’s Money” Guides

January 2, 2019

Millions of Americans manage money or property for a loved one who’s unable to pay bills or make financial decisions. To help financial caregivers, we’ve released easy-to-understand guides.

About the guides

The guides help you understand your role as a financial caregiver, also called a fiduciary. Each guide explains your responsibilities as a fiduciary, how to spot financial exploitation, and avoid scams. Each guide also includes a “Where to go for help” section with a list of relevant resources.

Managing Someone Else’s Money guides

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If you are serving as a financial caregiver, navigating your role can be difficult. We’re here to help.

Find the right guide for you

The guides are tailored to the needs of people in four different fiduciary roles:

Power of attorney

Guides for those who have been named in a power of attorney to make decisions about money and property for someone else.

View power of attorney guides

Court-appointed guardians

Guides for those who have been appointed by a court to be guardians of property or conservators, giving them the duty and the power to make financial decisions on someone’s behalf.

View guides for court-appointed guardians

Trustees

Guides for those who have been named as trustees under revocable living trusts.

View guides for trustees

Government fiduciaries

Guides for those who have been appointed by a government agency to manage another person’s income benefits, such as Social Security or Veterans Affairs benefit checks.

View guides for government fiduciaries

Handbook for Helping People Living Alone with Dementia Who Have No Known Support

January 2, 2019

2018 NADRC:
Handbook for Helping People Living Alone with Dementia Who Have No Known Support

The Handbook for Helping People Living Alone with Dementia Who Have No Known Support provides practical guidance as well as tools for helping a person living alone who does not have informal supports, including people with dementia who have a caregiver that cannot provide support. The handbook includes practical strategies for identifying people who are living alone without support, assessing risk, building trust, identifying family and friends willing to help, determining decision-making capacity, options for helping the person maintain their independence, and the basics of guardianship or conservatorship.

Also: Living Alone: living alone with dementia, live alone, single, widowhood, unmarried, no support, no family, autonomy, capacity, care planning, competency, ethics, financial capacity, informed consentFile: 

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2018 NADRC: Handbook for Helping People Living Alone with Dementia Who Have No Known Support