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.

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.

Plan Medicaid and Inheritances Carefully

October 17, 2022Filed Under: Elder Law, Medicaid Planning

It is possible to make mistakes when it comes to inheritances and Medicaid. It can be very costly to make those mistakes. When a person is drawing Medicaid benefits and inherits money or property, that inheritance jeopardizes the benefits. The inheritance must be handled carefully to minimize expensive penalties. What “careful” means, though, can be misunderstood without the necessary expertise.

The Right Steps for Handling Inheritance

The first and best idea is to call experienced elder law attorneys like us. (An even better idea is to call us well before any inheritance becomes a “problem.” The sooner you call us, the more money we can likely protect for you.)

An Ohio attorney was recently suspended partly because he mishandled this Medicaid-inheritance issue. The mistaken advice was that to protect the benefits, the person who stood to inherit should “disclaim” or “renounce” the inheritance – in other words, give it away to someone else.

Medicaid Rules and Inheritance Context

That advice would have been OK in the tax context. It was not OK in the Medicaid context. The Medicaid rules count inheritances regardless of whether the recipient keeps them or passes them on to someone else. The bad result, in such cases, is that the person receiving Medicaid would be charged just as if he or she had taken the money, even if he or she gave it away, and the person’s benefits would be docked accordingly. This can be a very expensive misstep.

The better result would be to consult us immediately. We can advise you on the necessary techniques to split the inheritance between the recipient and somebody else, like a child. If the right strategies are used, Medicaid would count the inheritance to an extent, but not as much as it would have if the recipient had simply given away the whole sum.

An even better result would be if the person leaving the inheritance had consulted us first. We know how to structure that person’s financial arrangements, to protect the people to whom the person wants to leave his or her legacy.

Elder law is a law unto itself. We know that complicated area of the law well and we have helped many people successfully meet the challenges it poses. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact us at 513-771-2444.

The Combination of Estate Planning and Elder Law Equals Life Care Planning

October 3, 2022Filed Under: Elder Law, Estate Planning

Elder law and estate planning are often used interchangeably, but there are significant differences between them. While some overlap exists between the two, learning and implementing strategies from both law practice types is crucial to prepare for successful aging and preserve a family legacy.

Estate planning lets families:

Name guardians for minor children
Manage and protect valuable assets
Distribute property according to specific instructions after you die
Minimize potential estate taxes
Simplify or avoid probate
Distribute property to beneficiaries
Create a business succession plan

Younger people tend to focus on asset protection in their earlier years. They are building their legacy.

Elder law primarily deals with later stages in life and an aging individual’s needs while they are still alive, like:

Retirement goals
Paying for long-term care
Protecting the family if they become incapacitated due to an accident, severe illness, or reduced cognitive function
Accessing proper health care without depleting a senior’s resources
Protecting the legal rights of aging adults
Address the needs of persons with disabilities and war veterans, including their spouses, children, and caretakers

Seniors worry about protecting their legacy from medical costs, fraud, or abuse. They want to keep the family home for a spouse or the next generation.

What is Estate Planning?

Estate planning is for adults of all ages. An estate plan determines what will happen to assets upon death. An estate planning attorney can use wills and trusts to ensure your wishes are followed. If there are minor children, a will identifies a guardian to guide and protect them through life until they become adults. Naming a guardian for minors is a crucial aspect of a will.

Estate planning lawyers can structure assets and property to help an estate avoid probate. Various revocable and irrevocable trusts can save money on estate taxes, leaving more to beneficiaries. The probate process is slow, can be very costly, and is a public process, so it makes sense to keep as much of your estate out of probate as possible.

Several assets can pass to heirs without being addressed in a will or a trust through beneficiary designations. Insurance plans, IRAs, and 401(k)s are all examples of beneficiary designation account types. Reviewing your designations is crucial for major life changes, particularly death or divorce. Update your beneficiaries. If they have changed or are deceased, a court will decide the fate of your funds.

If you have a small business, estate planning is also relevant to the business’s future success. A succession plan helps a future business owner or family member to run the business upon your retirement, incapacitation, or death. An estate planning attorney can help structure inheritance using life insurance policies to balance inheritable assets if one adult child is particularly interested in running the business and others are not.

What is Elder Law?

Focused on later stages of life, elder law anticipates future medical needs, including long-term care, to ensure a senior can live a long, healthy, financially secure life. The goal is to develop a plan to pay for future care that meets their comfort level while preserving as many assets as possible. An elder law attorney knows how to help you qualify for Medicaid or other government benefits while keeping a portion of your assets. In addition, they may support you through Medicaid hearings and appeals.

Elder law attorneys can help protect individuals from elder exploitation or abuse as they become older and caring for themselves becomes difficult. Designating a durable power of attorney (DPOA) for property and financial affairs and another for health and well-being permits representatives to oversee and protect seniors when they are no longer able. DPOAs are documents used in estate planning. Without a power of attorney, elder law and estate planning can assist with guardianship and conservatorship.

What is Life Care Planning?

As an estate grows in value and minor children become adults, it is important to revisit and amend your estate planning documents. Review them regularly as your life evolves, particularly after marriages, births, divorces, deaths, and substantial changes in finances. You may find yourself straddling the needs of children and aging parents. Estate planning shifts as estate planning attorneys consult with you on elder law matters.

Life care planning protects your assets, health, and legacy at every stage of life and addresses common concerns to avoid potential problems. Proactive planning is the key to living your best life, from raising a family to fears of declining health.

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 with any questions.

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