Appeal Rights for Medicare Recipients

January 30, 2023Filed Under: Elder Law, Long Term Care

An appeals court recently ruled that some Medicare beneficiaries may now appeal decisions regarding their patient status.

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.

This article offers a summary of aspects of estate planning, elder law, and Medicaid and Medicare coverage. It is not legal advice and does not create an attorney-client relationship. For legal advice, you should contact our Cincinnati office by calling us at 513-771-2444 and schedule a consultation.

How to Take Care of Your Elderly Parents

January 16, 2023Filed Under: Elder Law, Long Term Care

There is nothing you can do about aging, and it affects everyone in your family. It can be challenging for adult children to imagine their parents as seniors and to understand and respond to the reality that each parent will age differently. Even if you are in the fortunate circumstance where your aging parents can go it alone for a long time there will come a day when assistance or long-term care will be needed. There are things to consider as you help your parents live their best possible aging scenario. Managing their welfare takes time, research, and planning.

Your parents and their abilities to remain independent are most easily defined by activities of daily living and instrumental activities of daily living (ADLs and IADLs). Activities of daily living address daily functional mobility like getting in and out of bed or a chair, self-feeding, bathing and personal hygiene, the ability to use the toilet, and the ability to get dressed. These are essential daily living requirements that promote dignity and physical as well as emotional well-being for your elderly parents. If your parents are having difficulty managing these ADLs, it is an appropriate time to find help for them whether it is you or another qualified caregiver.

IADLs include all ADL activities and more. The additions are grocery shopping and cooking, medication management, laundry, and other housework, bill paying and finance management, using a telephone, and driving or using public transportation. Recognizing your parent’s limitations in any of these categories is a sign that you need to develop a care plan that provides appropriate assistance. The degree of change or sometimes multiple changes is an indication that staying at home may no longer be appropriate and safe for your parent. If you require assistance in determining suitable care needs, you can set up a comprehensive geriatric assessment by a medical professional. Take an honest look at the stage of life your parent is experiencing and then find the support and help they require.

Your aging parents’ geographical location is critical to consider as a family. Families are fortunate when one adult child lives nearby and can ensure their parent’s well-being. Video chat either online or through a phone application is one way to daily check on a parent. A friend may live close by and can do wellness checks and provide information about behavioral or health changes. If none of these options are viable, it may be time to discuss the idea of your parent(s) downsizing into another more supportive location and living arrangement.

Having this discussion is best before a parent’s adverse health event. Making residential changes without a previous plan in place can negatively impact the parent, especially when experiencing a health care crisis. When aging at home cannot be appropriately managed, it is time to consider the alternatives. These alternatives may include independent living communities, assisted living communities, nursing homes, or living with a trustworthy and capable relative or family member.

All of these assessments and changes in your parents’ lives impact their financial outlook. Making necessary residential changes can often be very costly, and your parent may need additional financial support from government or community programs to offset the difference in expenses. It is critical to take advantage of all possible financial help. As an adult child, you may have to begin managing your finances and retirement funds more actively. There are various federal, state, and non-profit groups that provide free tax assistance for seniors.

Some of the better organizations to help you navigate what is available are online and include Benefits.gov, Area Agency on Aging, and Benefitscheckup.org. These groups can help you assess the best strategies for housing, healthcare, financial assistance, legal aid, transportation, in-home services, prescription drugs, energy and utility support, and nutrition. BenefitsCheckUp is part of the National Council on Aging and is considered the nation’s most comprehensive online service for seniors with limited income and resources. The information available canvases all 50 states and the District of Columbia.

Caring for your aging parents should not be the job of one family member. The commitment should not be a burden, and responsibilities should be shared. Look for caregiver support organizations and forums as well as involving all family members. Everyone should do their part. The goal is to find the best blend of options and resources to allow your parents to age happily and well. Your parents’ health changes require that programs and opportunities change too. Caring for your aging parent is a dynamic process that must be retooled as their needs change.

We help families who are trying to navigate the maze of long-term care either for themselves or for an aging parent. 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 us at 513-771-2444.

Choosing the Right Care For Your Aging Loved Ones

December 26, 2022Filed Under: Elder Law, Long Term Care

According to sources, long-term care facilities are underfunded by government agencies. They lack the resources to do proper inspections of residential health facilities.

You may have seen the rating system provided by the Centers For Medicare and Medicaid Services (CMS). CMS awards stars to healthcare facilities on “Care Compare.”

The stars are there to help you make informed decisions. The more stars, the better the facility is supposed to be. However, the website also advises that in addition “to reviewing the information here, you should talk to your doctor, social worker, or other health care providers when choosing a provider.”

The good news is that the government is aware that residential care and government oversight must improve. There are efforts underway to better protect our nation’s elderly population. In the meantime, it is important to look beyond government ratings when investigating a facility for yourself or a loved one.

What to Look for in a Facility

Part of your research should include visiting the facility. Look for these qualities during your visit:

Well-groomed, engaged residents
Accessibility for residents with disabilities, such as elevators that can accommodate wheelchairs.
Decent food
Attentive staff
Nice rooms and furniture
Adequate health precautions

In addition to visiting, you will want to talk with current and former residents or their families. Their experiences will help you decide if any facility is a good fit for your loved one’s needs.

You will also want to evaluate practical issues such as affordability and location. Even the best facility in the world is not a good fit if no one will be able to visit the resident regularly.

In-Home Care

Of course, many older adults would rather receive in-home care instead of living in a residential facility. That option comes with challenges too. Government money available for in-home care is stretched thin, leaving many people on waiting lists to receive funds. Care workers are often not paid enough, affecting the availability and standard of care.

If you choose in-home care, consider having a family member regularly check in on the person receiving care. During these visits, look for evidence of safety, hygiene, and emotional well-being.

The research and visits will take time. However, the reward of knowing that your loved ones are as healthy and happy as possible is worth the effort.

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 us at 513-771-2444.

Residents of Nursing Homes Are Protected by the Policies of the Centers for Medicare and Medicaid Services

December 12, 2022Filed Under: Elder Law, Long Term Care

Nursing homes face a variety of public health challenges from infectious diseases like the flu and COVID-19. The Center for Medicare and Medicaid Services, CMS, outlines specific policies and protocols for residential health facilities. These measures outline policies related to visitations, nursing aid certification, and more. Nursing homes must comply with these policies to qualify for Medicare or Medicaid funds. The CMS goal is to ensure a minimum level of care for residents nationwide.

Nursing home residents are especially vulnerable to public health problems, such as infectious diseases. Their vulnerability comes from the inherent risks of congregate living and residents’ often fragile health, making strong public health policies especially important.

The Pandemic Health Emergency (PHE) from COVID-19 revealed a host of underlying problems in nursing homes across the United States. CMS guidelines changed to respond to the PHE and evolved again to reflect lessons learned from the PHE. While CMS regulates a minimal quality of care federally, states often supplement those policies.

State Legislation Goes Beyond Nursing Home Guidelines

A review of state legislatures finds twenty-three politically and geographically diverse states passed more than seventy new provisions affecting the operations of nursing homes. The laws cover a wide range of issues to benefit nursing home residents.

Connecticut law now permits its nursing home residents to designate an “essential support person” who can care for a loved one even during a public health emergency. In March 2021, the Alabama legislature enacted the “No Patient Left Alone Act.” Like Connecticut’s law, it ensures that residents have an advocate by their side, not merely a visitor stopping in for a quick hello.

Other states are ramping up efforts to provide tablets and other devices through lending libraries. Residents can borrow devices to communicate with their families and loved ones. Digital contact becomes necessary for some nursing home residents with families spread across the country and unable to visit frequently. These digital communications also help loved ones make appropriate care decisions and advocate for the resident’s needs.

Illinois reduced the cost of providing this equipment through grants via state funds received when health and safety violations of nursing homes reach a financial settlement.

Staffing levels are another issue the states are tackling. Addressing staffing shortages is a long-time response to a 1987 federal law requiring CMS facilities to maintain nursing staff sufficient to “attain or maintain the highest practicable well-being of each resident.” The vagueness of this law led several states to add more specific staffing requirements.

The office of the Attorney General of New York State in the Nursing Home Response to COVID-19 Pandemic report findings show lower COVID-related death rates in nursing homes with higher staffing levels. Arkansas Advocates for Nursing Home Residents Martha Deaver concurs that the standard of care decreases with less staff.

States are also ensuring facilities are not receiving excessive profits from government payouts to care for residents. New Jersey requires nursing homes to spend ninety percent of their revenues on direct care. New York deems the number to be seventy percent, including 40 percent to pay direct-care workers. Massachusetts regulations mandate nursing homes devote seventy-five percent to direct-care staffing costs and have no more than two people living in one room.

These states’ patchwork protections for nursing home residents are part of the nation’s nursing home care regulatory system. CMS sets the minimum requirements providers must meet in their facilities to participate in the Medicare/Medicaid programs at the federal level. It is permissible for states to implement specific additional requirements as long as they do not conflict with existing federal requirements.

Inequalities Among States for Residential Facilities

Because each state can implement additional nursing home regulatory improvements, there are uneven nursing home care provisions throughout the country. These differences may exacerbate healthcare disparities of financial status, race, or gender. Richard Mollot, executive director for the Long Term Care Community Coalition advocacy group, finds this hodgepodge approach “a poor substitute for comprehensive federal rules if they were rigorously enforced.” If you or a loved one is a nursing home resident, you should know the additional measures your state provides. Depending on how your state supplements the CMS minimum standards of care, you may need to do research that your chosen facility goes above and beyond the minimum requirements.

We hope you found this article helpful. If you’d like to discuss your particular situation, please don’t hesitate to reach out. Please contact our Cincinnati office by calling us at 513-771-2444 and schedule a consultation.