Hospital Trying to Revoke Daughter’s Power of Attorney

 In an effort to discharge an elderly patient, a Chicago hospital is going to court to revoke the power of attorney of the patient’s daughter and substitute it with a guardianship.

Dolores Bedin, 86, has terminal pancreatic cancer. Northwestern Memorial Hospital maintains that Dolores has been able to leave since September 18, and the hospital is absorbing the cost of her care because Medicare regards the hospitalization as medically unnecessary.

But Janet Bedin, who is her mother’s agent under her power of attorney, strongly disagrees that her mother is able to go home and has so far successfully blocked the hospital’s discharge attempts. Janet, a businesswoman whose work involves travel, worries that she won’t be able to adequately care for her frail mother at home. Unless her mother impoverishes herself and goes on Medicaid, there is little help the state can offer. The situation is further complicated by the fact that the elder Bedin has been the primary caregiver for a disabled son.

The hospital is asking the court to appoint a public guardian for Dolores on the grounds that Janet is not acting in her mother’s best interests by cooperating with the hospital’s efforts to discharge her mother.

“She’s my daughter,” Dolores says of Janet. “I want her to make decisions for me. She’s backing me up. They want to give me somebody who doesn’t know me.”

“You have a complicated situation,” Suzanne Mintz, president of the National Family Caregivers Association, told the Chicago Tribune. “It’s about logistics. It’s about services. It’s about money. (Caregiving) is a very difficult thing to figure out, especially if you’re working. It’s difficult enough to figure it out for one person. (Janet Bedin is) figuring it out for two people.”

To read the entire Chicago Tribune article, click here.

UPDATE: Faced with losing power of attorney over her mother, Janet Bedin agreed to allow Deolores Bedin to be discharged from the hospital. For details, click here.

Courts Reject ‘Urban Legend’ That Medicare Nursing Coverage Requires Improvement

In welcome news for seniors and the disabled with chronic conditions, two federal courts in the past two months have ruled that Medicare’s coverage of skilled care does not require a beneficiary to show improvement. Instead, both courts said that Medicare can pay for skilled care if it is needed simply to preserve a patient’s current functioning or prevent further decline.

Home health agencies and nursing homes that contract with Medicare routinely terminate the Medicare coverage of a beneficiary who has stopped improving, adhering to what Medicare advocates have referred to as an “urban legend” that such beneficiaries are receiving “custodial care,” which Medicare does not cover. These beneficiaries could include those with chronic conditions and disabilities like multiple sclerosis, Alzheimers disease, ALS, and broken hips.

In terminating coverage, the Medicare contractors are not following the Medicare statute or its regulations, neither of which says improvement is required for continued skilled care. “The improvement standard derives instead from references in some Medicare manual provisions, which have been refined, simplified, and emphasized in contractors’ internal guidelines over time” and has become “a part of Medicare culture,” according to attorneys at the Center for Medicare Advocacy, which has led the fight to overturn the improvement standard.

The Obama administration has so far been unwilling to correct its guidelines, so beneficiaries denied coverage have had to resort to the courts — and lately they’ve been winning. In late September, a federal district court ruled that Medicare should not have stopped payments to a beneficiary in a nursing home simply because she was not improving.

Eighty-one-year-old Wanda Papciak had been admitted to the nursing home for rehabilitative care following hip surgery. Medicare paid for Ms. Papciak’s care for about a month, but then determined that she no longer needed skilled care because she was unlikely to improve further. Medicare denied payment for 10 days of services, concluding that during that time Ms, Papciak had not received the skilled care it covers but only “custodial care,” which Medicare does not pay for.

Ms. Papciak sued the Obama administration, arguing that Medicare should have considered whether she required skilled nursing care to maintain her current level of functioning.

On September 28, 2010, the U.S. District Court for the Western District of Pennsylvania ruled in favor of Ms. Papciak, concluding that “[t]he restoration potential of a patient is not the deciding factor in determining whether skilled services are needed. Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.” (For the full text of the court’s decision, click here.)

The second case involved Sandra Anderson, a 60-year-old woman who had been receiving home health care covered by Medicare following a second stroke. When Medicare cut off her benefits, she also sued.

Ruling that “[a] patient’s chronic or stable condition does not provide a basis for automatically denying coverage for skilled services,” the U.S. District Court for the District of Vermont sent Ms. Anderson’s case back for reconsideration in light of its determination. (For the full text of the court’s decision, click here.)

“Beneficiaries are frequently told that Medicare will not cover skilled services if their underlying condition will not improve,” a group of 17 House Democrats wrote in a letter to the Obama administration requesting that it change its policies. “For example, as people with multiple sclerosis are often not likely to improve, skilled services such as physical, occupational and speech therapies that are necessary to slow the progression of the disease, or maintain current function, are denied. As a result, these individuals conditions deteriorate –frequently leading to more intense, more expensive services, hospital or nursing home care.”

However, because the court opinions apply only to their districts, lawsuits will likely continue until the Obama administration instructs its contractors to follow the law.

For a New York Times article on the two court decisions, click here.

For a Clearinghouse Review article on the improvement standard by attorneys at the Center for Medicare Advocacy, click here.

To discuss elder law issues with an attorney, please email the Elder Law Center or call 630-844-0065. The Elder Law Center is located in Aurora, IL, Kane County, in the Chicago Western Suburbs.

IRS Issues Long-Term Care Premium Deductibility Limits for 2011

Social Security benefits may be stagnant, but the IRS is increasing the amount you can deduct on your 2011 taxes as a result of buying long-term care insurance.

Premiums for “qualified” long-term care insurance policies (see explanation below) are tax deductible provided that they, along with other unreimbursed medical expenses, exceed 7.5 percent of the insured’s adjusted gross income. These premiums — what the policyholder pays the insurance company to keep the policy in force — are deductible for the taxpayer, his or her spouse and other dependents. (If you are self-employed, the tax-deductibility rules are a little different: You can take the amount of the premium as a deduction as long as you made a net profit; your medical expenses do not have to exceed 7.5 percent of your income.)

However, there is a limit on how large a premium can be deducted, depending on the age of the taxpayer at the end of the year. Following are the deductibility limits for 2011. Any premium amounts for the year above these limits are not considered to be a medical expense.

Attained age before the close of the taxable year	Maximum deduction for year
40 or less	$340
More than 40 but not more than 50	$640
More than 50 but not more than 60	$1,270
More than 60 but not more than 70	$3,390
More than 70	$4,240

What Is a “Qualified” Policy?

To be “qualified,” policies issued on or after January 1, 1997, must adhere to certain requirements, among them that the policy must offer the consumer the options of “inflation” and “nonforfeiture” protection, although the consumer can choose not to purchase these features. Policies purchased before January 1, 1997, will be grandfathered and treated as “qualified” as long as they have been approved by the insurance commissioner of the state in which they are sold. For more on the “qualified” definition, click here.

The Georgetown University Long-Term Care Financing Project has a two-page fact sheet, “Tax Code Treatment of Long-Term Care and Long-Term Care Insurance.” To download it in PDF format, go to: http://ltc.georgetown.edu/pdfs/taxcode.pdf

(If you do not have the free PDF reader installed on your computer, download it here.)

To discuss elder law issues with an attorney, please email the Elder Law Center or call 630-844-0065. The Elder Law Center is located in Aurora, IL, Kane County, in the Chicago Western Suburbs.

Avoid Disagreements Between Your Power of Attorney Holder and Health Care Proxy

A durable power of attorney and a health care proxy are two very important estate planning documents. Both allow other people to make decisions for you in the event you are incapacitated. Because the individuals chosen will have to coordinate your care, it is important to pick two people who will get along.

A power of attorney allows a person you appoint — your agent or “attorney-in-fact” — to act in your place for financial purposes when and if you ever become incapacitated. A health care proxy is a document that gives an agent the authority to make health care decisions for you if you are unable to communicate such decisions.

While the health care proxy is the one who makes the health care decisions, the person who holds the power of attorney is the one who needs to pay for the health care. If the two agents disagree, it can spell trouble. For example, suppose your health care agent decides that you need 24-hour care at home, but your power of attorney thinks a nursing home is the best option and refuses to pay for the at-home care. Any disagreements would have to be settled by a court, which will take time and drain your resources in the process.

The easiest way to avoid conflicts is to choose the same person to do both jobs. But this may not always be feasible — for example, perhaps the person you would choose as health care proxy is not good with finances. If you pick different people for both roles, then you should think about picking two people who can get along and work together. You should also talk to both agents about your wishes for medical care so that they both understand what you want.

If you have questions about whom to name for these roles, or you haven’t yet executed these all-important documents, contact your elder law attorney.

For more information on health care proxies, click here.

For more information on powers of attorney, click here.

To discuss elder law issues with an attorney, please email the Elder Law Center or call 630-844-0065. The Elder Law Center is located in Aurora, IL, Kane County, in the Chicago Western Suburbs.

Some Seniors Getting Sticker Shock When Moving From Hospital to Nursing Home

A growing number of Medicare beneficiaries are spending days in the hospital before being transferred to a nursing home, only to find that Medicare won’t pay for the first 20 days of their nursing home stay, as it typically would. The reason, the beneficiaries later learn, is that they had never actually been “admitted” to the hospital, but were only under “observation.”

Medicare covers nursing home stays entirely for the first 20 days, but only if the patient was first admitted to a hospital as an inpatient for at least three days. In part due to pressure from Medicare to reduce costly inpatient stays, hospitals are increasingly not admitting patients but rather placing them on observation to determine whether they should be admitted. Although according to Medicare guidelines it should take no more than 24 to 48 hours to make this determination, in reality hospitals can keep patients under observation for days.

The consequence is that if the patient moves to a nursing home after being “released,” the patient must pick up the tab for the nursing home stay — Medicare will pay none of it. The bills can run between $200 and $500 a day. But hospital patients often have no idea that they haven’t actually been admitted to the hospital, and Medicare does not require such notification.

“They go upstairs to a bed, they get a band on their wrist, nurses and doctors come to see them, they get treatment and tests, they fill out a meal chart — and they assume that they have been admitted to the hospital,” says Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy.

In any case, there is little that patients who know they have been placed in observation status can do because they haven’t been refused benefits. Medicare is still paying for their hospital stay, although on an outpatient basis.

“There’s no official appeal,” says Edelman. “Medicare has not denied coverage. You’re in no man’s land.”

More and more elderly are finding themselves temporary residents of this no man’s land. Medicare claims for observation care rose from 828,000 in 2006 to more than 1.1 million in 2009, according to an article in Kaiser Health News. Over the same period, Medicare claims for observation care that lasted more than 48 hours tripled to 83,183.

Help may be on the way, however. Rep. Joe Courtney (D-CT) recently introduced a bill, H.R. 5950, that would allow for the time patients spend in the hospital under “observation status” to count toward the requisite three-day hospital stay for Medicare coverage of skilled nursing care. The bill would also let beneficiaries with pending appeals at the time of passage benefit from Medicare’s coverage of skilled nursing care. For more on Rep. Courtney’s bill, click here.

For more on Medicare’s rules regarding nursing home coverage, click here.

To discuss elder law issues with an attorney, please email the Elder Law Center or call 630-844-0065. The Elder Law Center is located in Aurora, IL, Kane County, in the Chicago Western Suburbs.