Elder Law Prof Blog

End-of-Life Decisions and Technology, Especially Ventilators

At Dickinson Law, in the last third of the Spring 2020 Semester, my Elder Law students are doing a module on End-of-Life Decisions.  I had planned this module more than a year in advance; certainly the timing has proven to be uniquely relevant.  Originally, my plan was for an in-depth discussion about choices related to assisted death, sometimes known as the Death with Dignity or Physician-Assisted Death.  And we are considering comparative studies and positions on legislation intended to support this choice, starting with a review of Oregon's more than 20 years of experience in providing this option.  

The COVID-19 pandemic, however, is triggering new focal points on end-of-life decisions.  Consider for example the statement by an emergency room chief in a San Francisco hospital, as quoted recently in the Los Angeles Times, "You have an 80-year-old and a 20-year-old and both need a vent and you only have one.  What do you do?"  Individuals may have thoughtfully made advance decisions about whether they want mechanical assistance in breathing during life-or-death circumstances.  They may have appointed an agent to speak for them or created written directions via living wills, DNR orders, or POLST documents.  But it is one thing to make you own decision; it is another to have the "decision" made because of lack of what is arguably baseline equipment.  

I've been particularly interested in the history behind ventilator shortages as reported by The New York Times.  

Thirteen years ago, a group of U.S. public health officials came up with a plan to address what they regarded as one of the medical system’s crucial vulnerabilities: a shortage of ventilators. The breathing-assistance machines tended to be bulky, expensive and limited in number. The plan was to build a large fleet of inexpensive portable devices to deploy in a flu pandemic or another crisis.

 

Money was budgeted. A federal contract was signed. Work got underway.

 

And then things suddenly veered off course. A multibillion-dollar maker of medical devices bought the small California company that had been hired to design the new machines. The project ultimately produced zero ventilators.

The rest of the story reads like a detective tale.  The small California-based company was proposing a new generation of easy-to-use, more cost effective, mobile ventilators.  By 2012, the partners were on schedule to file for market approval in September 2013, paving the path for production.  However, in May 2012, a much large medical device manufacturer bought the California-based company for just over $100 million.  Good news? That larger company might have especially strong resources for speedy production, right?

The new owner, Covidien, already made ventilators -- at a higher cost -- and in 2014, reportedly told federal officials they wanted to get out of the new ventilator contract.  The federal government agreed to cancel the contract. Covidien was sold to an even larger international company in 2015.

Why?  For more, read "The U.S. Tried to Build a New Fleet of Ventilators.  The Mission Failed," by Nicholas Kulish, Sarah Kliff and Jessica Silver-Greenberg, published in the NY Times on March 29 2020 and updated on March 31, 2020.  Or catch a NY Times podcast that looks further into shortages of hospital rooms, COVID-19 testing supplies and ventilator availability.  All interesting -- especially if you are talking about "end-of- life decisions."  

Make Your SSA Advance Designation Now, Just In Case?

Last week I got an email notification of a recent blog post from SSA.  Advance Designation: Choose a Representative Payee for Social Security to Consider Before You May Need One

Here's the info

The future can be uncertain. However, Social Security’s Advance Designation program can help put you in control of your benefits if a time comes when you need a representative payee to help manage your money.

Advance Designation enables you to identify up to three people, in priority order, whom you would like to serve as your potential representative payee.

The following people may choose an Advance Designation:

• Adults applying for benefits who do not have a representative payee.
• Adult beneficiaries/recipients who do not have a representative payee.
• Emancipated minors applying for benefits who do not have a representative payee.
• Emancipated minor beneficiaries/recipients who do not have a representative payee.

The blog post continues to explain more about how to do this and when it is used. The accompanying FAQ about the Advance Designation is available here.

Two Upcoming Webinars: COVID-19 & SSA and Medicare

Justice in Aging  has announced two upcoming webinars  on important topics. First up is a free webinar on April 10, 2020 on New Policies Related to COVID-19 at SSA  that covers the following:

The Social Security Administration (SSA) has made many changes to its policies and procedures in response to the COVID-19 pandemic. These changes impact all areas of the agency – the local offices, each state’s Disability Determination Service, and the hearing offices. This webinar will provide an overview of these changes, and offer suggestions for how advocates can interact with SSA during this unusual time.

Registration info is available here,

The second webinar, on April 14, 2020 covers Medicare and COVID-19.  Scheduled for 2 p.m. edt, this webinar will cover "The Centers for Medicare & Medicaid Services (CMS) and new legislation have changed many of the rules in Medicare to respond to COVID-19. This webinar will focus on the changes to Medicare that most impact low-income older adults."

To register for this webinar, click here. 

 

AG Initiative vs. Financial Exploitation

Last week AG Barr was in Florida to announce an initiative. Department of Justice Charges Unprecedented Number of Elder Fraud Defendants Nationwide and Launches Hotline.

 

Attorney General William P. Barr, FBI Director Christopher A. Wray, and Chief Postal Inspector Gary R. Barksdale today announced the largest coordinated sweep of elder fraud cases in history.  This year, prosecutors charged more than 400 defendants, far surpassing the 260 defendants charged in cases as part of last year’s sweep.  In each case, offenders allegedly engaged in financial schemes that targeted or largely affected seniors.  In total, the charged elder fraud schemes caused alleged losses of over a billion dollars.

Take note of this statement from the press release--it's significant "During the event, the Attorney General declared “Prevention and Disruption of Transnational Elder Fraud” to be an Agency Priority Goal, making it one of the Department’s four top priorities."  As mentioned in the headline of the press release, the AG also announced the creation of a hotline,

[The] National Elder Fraud Hotline, which will provide services to seniors who may be victims of financial fraud.  The Hotline will be staffed by experienced case managers who can provide personalized support to callers.  Case managers will assist callers with reporting the suspected fraud to relevant agencies and by providing resources and referrals to other appropriate services as needed.  When applicable, case managers will complete a complaint form with the Federal Bureau of Investigation Internet Crime ComplaintCenter(IC3) for Internet-facilitated crimes and submit a consumer complaintto the Federal Trade Commission on behalf of the caller.  The Hotline’s toll free number is 833-FRAUD-11 (833-372-8311).

There was also a super cool "sweep" in all the federal districts: "U.S. Attorneys’ Offices in every federal district took part in the Elder Fraud Sweep announced today. Many federal prosecuting offices filed cases against perpetrators and/or facilitators of elder fraud. Others conducted outreach to law enforcement, community groups, seniors, or private industry. Other U.S. Attorneys’ Offices demonstrated exceptional devotion to the cause of elder justice by both filing cases and conducting outreach."

Check out the full press release to learn more details.

ACTEC Journal Call for Papers

ACTEC (American College of Trusts & Estate Counsel) is devoting a volume of its Journal to Elder Law!  Here's the info about the call for papers.

The American College of Trust and Estate Counsel announces a Call For Papers on the following topic:

With an aging generation of Boomers and increasing estate tax exemptions, the practice and study of trusts and estates may be driven less by tax planning and more by a host of other issues confronting an older population. Those issues may be broadly grouped under the term "Elder Law."

A special issue of the ACTEC Law Journal will be devoted to a discussion of the intersection of Trusts and Estates and Elder Law and will be comprised of brief articles (2,000 word maximum). The conception of Elder Law is broad and intended to encompass all matters of legal concern that a trusts and estates lawyer might address for an aging client – or a client who is concerned about aging. Suggested topics include retirement planning, financial planning and wealth management, guardianship, disability and medical care, end-of-life planning, incapacity, powers of attorney, health care proxies, nursing homes and long-term care planning, special needs trusts, Medicare, Medicaid, Social Security, elder abuse (physical or financial), age discrimination, family succession planning, grandparent visitation rights, and classic core trusts and estates topics like wills, trusts, intestacy, probate administration, and nonprobate transfers.

Procedure for proposals: Authors wishing to contribute to this special volume should send a brief proposal to Professor Alyssa A. DiRusso, Editor, ACTEC Law Journal, at aadiruss@samford.edu. Please include “ACTEC Elder Law” in the subject line of your e-mail.

Proposals are due by April 1, 2020. Early submissions are encouraged as proposals will be reviewed on a rolling basis. Given the brevity of each article, articles that delve into one or two topics in detail will normally be preferred over more general articles. We encourage submissions by authors from a variety of backgrounds, including those actively involved in fiduciary administration or the practice of law.

Final articles will be due by August 1, 2020 and will be published in the ACTEC Law Journal, Volume 46 Issue 1.

Do You Know Enough About the Legal Issues Surrounding Subsidized Housing?

If you answer to that question was no, then register now for this free webinar from the National Center on Law and Elder Rights, Legal Basics of Subsidized Housing Rents: Income, Formula-Based, and Tax Credit Properties Here's information about the webinar:

A variety of rules govern the setting and adjustment of rents in different federally assisted rental housing programs. For most tenants in these programs, a tenant’s share of the rent is based on the tenant’s income, usually at 30% of adjusted household income. For some tenants, however, the rent may be unrelated to tenant income. This is true for: 1) tenants in privately owned, federally supported housing, without deep rental subsidies or with formula rents; 2) for certain public housing tenants who pay a “flat rent” based on reasonable market value or who are subject to minimum rents set by statute; and 3) tenants in Low Income Housing Tax Credit (LIHTC) properties where rents are set based on a percentage of the local area median income. This webinar will provide an overview of the rules governing tenant rent contributions in the major federal programs, including public housing, project-based rental assistance programs, the Housing Choice Voucher program, and LIHTC. The webinar will also review how a tenant’s rent contribution is established and adjusted in different programs, with a particular focus on the rules governing income determinations.

To register, click here.

SSA Fighting SSA Fraud

For those of us who have ever been victims of a fraud that involves your Social Security benefits, we know it's a serious pain (speaking from personal experience).  Protecting all of your personal info is so important. To help beneficiaries, SSA has released a new PSA for beneficiaries. Social Security Launches New Campaign to Fight Scammers explains:

Recently, we launched a new Public Service Announcement campaign as our latest step to caution you about the ongoing nationwide telephone impersonation scheme. The videos feature a message from our Commissioner, Andrew Saul. Along with our Office of the Inspector General, we continue to receive reports about fraudulent phone calls and emails from people falsely claiming they’re government employees. The scammers play on emotions like fear to convince people to provide personal information or money in cash, wire transfers, or gift cards. Fraudsters are also emailing fake documents in attempts to get people to comply with their demands.

“I want every American to know that if a suspicious caller states there is a problem with their Social Security number or account, they should hang up and never give the caller money or personal information. People should then go online to report the scam call to Social Security,” said Commissioner Saul.

The PSA is available here. Watch it!

Don't Miss This Webinar: Public Charge and Elder Immigrants

Do you know about the Public Charge and Elder Immigrants issue? Justice is Aging has a webinar scheduled on this for March 9, 2020 at 2-2:30 eastern time..  Here's the info from the announcement.

Public Charge and Immigrant Seniors

In January, the U.S. Supreme Court removed the nationwide temporary injunction that had prevented the Department of Homeland Security (DHS) public charge immigration rule from taking effect. This means that the public charge rule that DHS finalized last August can go into effect nationwide, except in Illinois, where it is blocked by a statewide injunction. DHS announced that it will begin implementing the final rule on February 24th.

The Supreme Court’s decision endangers the health and well-being of older immigrants and their families and cruelly impedes the path to citizenship and family unification. However, it is not a final decision and we must continue to fight to stop this harmful policy from becoming permanent. The multiple cases challenging the underlying legality of the final public charge rule will continue in the courts. DHS has appealed all the district court decisions that issued preliminary injunctions to the Second, Fourth, Seventh, and Ninth Circuits. DHS has also asked the U.S. Supreme Court to hear the case.

Justice in Aging and our partners have filed amicus briefs in the Second and Ninth Circuits to ask the court to affirm the district courts’ nationwide injunctions and to highlight the ways in which this rule unfairly targets older immigrants, their families, and caregivers. This webinar, Updates on Public Charge & Older Immigrants, will begin with an overview of the public charge test and how it applies to older adults, discuss the current state of litigation, and provide information on what advocates need to know about the rule’s implementation.

Who should participate:
Aging and legal advocates, advocates serving immigrant communities, community-based providers, and others wanting to learn more about how changes to the public charge test and implementation of the new regulations impact older immigrants.

To register for the webinar, click here. More info about this issue is available from Justice in Aging here.

 

Yet Another Arbitration Case

My daily news feed from Bloomberg Law contained an article about a recent case. Here's a quick excerpt from the article,  Son’s Signature Didn’t Bind Nursing Home Resident to Arbitration:

An Arkansas nursing home resident’s representative won’t be forced to arbitrate medical negligence and breach of contract claims against the facility because neither the resident nor her representative signed an arbitration agreement, a state appeals court said.

The Arkansas Court of Appeals affirmed a lower court’s denial of Hickory Heights Health & Rehab LLC’s motion to compel arbitration of claims brought on behalf of Mary Young. Young’s son signed an arbitration agreement along with an admissions agreement when Young first entered Hickory Heights, the court said. But his signature wasn’t binding because he wasn’t Young’s designated representative at the time, it said.

The result is somewhat unusual, as arbitration clauses are favored under both state and federal law. But, as the court noted, arbitration agreements are contracts and may be invalidated by any generally applicable contract defense, such as invalidity.

The case is Hickory Heights Health & Rehab, LLC v. Taylor, 2020 Ark. App. 98 (2020).

Nation's Top 10 Frauds vs. Elders per the Senate Committee of Aging

The Senate Special Committee on Aging has released a new publication that updates us on frauds vs. elders. The intro to  Fighting Fraud:Senate Aging Committee Identifies Top 10 Scams Targeting Our Nation’s Seniors explains

,It is estimated that older Americans lose a staggering $2.9 billion a year to an ever-growing array of financial exploitation schemes and scams. They are being targeted by criminals who want to rob them of their hard-earned retirement savings. They are being exploited by strangers over the telephone, through the mail, and online. Worse yet, far too many seniors may also be targeted by family members or by other people who they trust. The U.S. Senate Special Committee on Aging is committed to protecting older Americans against fraud and to bringing greater awareness of this pervasive problem. The Committee maintains a toll-free Fraud Hotline: 1-855-303-9470. By serving as a resource for seniors and others affected by scams, the Hotline has helped increase reporting and awareness of consumer fraud. Additionally, Committee staff and investigators who operate the Fraud Hotline can provide callers with important information to help reduce the likelihood that they will become a victim.Over the past year, more than 1,300 individuals all across the country contacted the Fraud Hotline. Since the Fraud Hotline’s inception in 2013, more than 9,500 individuals from all 50 states have contacted the Committee’s Fraud Hotline to report a possible scam. The Committee would like to thank the many consumer advocacy organizations, community centers, and local law enforcement officials that have provided invaluable assistance by encouraging consumers to call the Fraud Hotline to document scams. We look forward to building upon our successful efforts to investigate and stop scams aimed our nation’s seniors, and to ensure that federal agencies are aggressively pursuing the criminals who commit these frauds.

I know you can't wait to learn which are the top 10 scams. Here you go!

Top 10 Most-Reported Scam sFrom January 1, 2019, through December 31, 2019, the Senate Aging Committee’s Fraud Hotline received a total of 1,341 complaints from residents all across the country. Calls pertaining to the top 10 scams featured in this report account for more than 70 percent of the complaints.

Rank   Type of Scam   # of Complaints

1   Social Security Impersonation Scam  371

2     Robocalls / Unsolicited Phone Calls         123

3   Sweepstakes Scam/Jamaican Lottery Scam 107

4    Romance Scams                          99

5    Computer Tech Support Scams 93

6   Grandparent Scams                                 51

7    IRS Impersonation Scam                               34

8   Identity Theft                                                    27

9  Debt Scams                                                  21

10 Elder Financial Abuse18

The full report is available here.

Too Young for Senior Living?

My colleague and dear friend, Mark Bauer sent me this article, An orphaned teen is being forced out of his grandparents' senior community because he's too young.   Here's what happened. The kid's parents both died and he moved in with his grandparents in Prescott, Az, where they live in a 55+ community.  "[T]he homeowner's association said it could face legal issues if he stayed."  He has about 5 months to move out. Although younger folks can live there, the minimum age noted in the article is 19.  Both sides have representation and no solution was noted in the article.  My sense from the article is  the positions boil down to these: have some compassion from the one side, and from the other-there are rules and those who live there have an interest in the purpose of the rules.  The young man is 15 years old.  I do understand both sides of the argument-there are those who chose to live there because they wanted to live in a community with age restrictions. But on the other hand, both of his parents died.....  This is a great fact pattern for our students, and I'm planning to assign them to represent each of the sides and make their arguments.

Stay tuned.

 

The Limits of Hospice Home Care?

Kaiser Health News ran a story about hospice for individuals dying at home and the role of families. Patients Want A ‘Good Death’ At Home, But Hospice Care Can Badly Strain Families explains how Hospice home care works:

Hospice allows a patient deemed to have fewer than six months to live to change the focus of their medical care — from the goal of curing disease to a new goal of using treatments and medicines to maintain comfort and quality of life. It is a form of palliative care, which also focuses on pain management, but can be provided while a patient continues to seek a cure or receive treatments to prolong life.

But the Hospice folks don't do all of the caregiving, with "many family caregivers [responsible for] most of the physical work to [the family, with one daughter noting] that during the final weeks of her mother’s life, she felt more like a tired nurse than a devoted daughter."

Acknowledging that more and more folks want to die at home, the article notes the tasks that fall to family members caring for the person in the final days of life.  "Hospice agencies primarily serve in an advisory role and from a distance, even in the final, intense days when family caregivers, or home nurses they’ve hired, must continually adjust morphine doses or deal with typical end-of-life symptoms, such as bleeding or breathing trouble. Those decisive moments can be scary for the family... "said one expert.  From personal experience, I can confirm that this happens and it is scary. We were lucky-one of our family  was a nurse. I'm not sure how we would have gotten through the process without her. But not everyone has their own family medical professional.

Here's the thing.  The person needs 24 hours care but that may not be something Hospice will provide because "hands-on help is scarce. According to Medicare, hospice benefits can include home health aides and homemaker services. But in practice, that in-person help is often limited to a couple of baths a week. Medicare data reveals that, on average, a nurse or aide is only in the patient’s home 30 minutes, or so, per day."

The article looks at the costs and Medicare coverage rates, Hospice residences and nursing home care.  There's something of a Catch-22 happening.  "As researchers in the field look to the future, they are calling for more palliative care, not less — and, at the same time, they are advocating for more support for the spouses, family members and friends tasked with caring for the patient."  As one expert noted, there's a real need "to expand — in general — our approach to supporting caregivers, [pointing out] that some countries outside the U.S. pay for a wider range and longer duration of home health services."

 

 

Medicare Part D Donut Hole-Gone or Not?

The New York Times an an article scrutinizing the status of the Part D coverage gap (a/k/a the Donut Hole), in Medicare’s Part D Doughnut Hole Has Closed! Mostly. Sorta.

The donut hole  was weird and unlike other types of insurance and as the article explains, "“designed that way because Congress had a self-imposed budget target,” said Tricia Neuman, who directs the Medicare policy program at the Kaiser Family Foundation.... In order to afford a low deductible, catastrophic coverage and protection for those with low incomes, lawmakers agreed to the doughnut hole. But what other kind of insurance works like that?"

The Affordable Care Act (ACA) contained a provision that gradually closed  the donut hole. "The final reduction, for generic drugs, slid into place on Jan. 1. Now, supposedly, there is no coverage gap. Federal regulations require that your plan (most Medicare beneficiaries can choose from nearly 30) average 25 percent cost-sharing for any drug."  But remember closing the donut hole is not the same as reducing the cost of prescription drugs.

There's still remaining weirdness with the Part D program, as the article highlights:

• This year, after meeting the $435 deductible, you generally pay a flat price for each covered drug during the so-called initial coverage period. Different plans assign drugs to different tiers for which you pay specified amounts.

But once your total drug expenditures hit $4,020, you’re responsible for 25 percent of the plan’s negotiated cost per drug — not a gap, exactly, but a shift.

If you were paying $45 for a prescription that costs $200, your share is now $50 — not a major change. But for a $500 drug, you’ll owe $125 until you reach the catastrophic threshold.

 . .

• It will now take longer to climb out of the not-exactly-a-hole.

Last year, you qualified for catastrophic coverage when your out-of-pocket expenditures reached $5,100.

This year, you don’t qualify until they hit $6,350, a big jump. The Affordable Care Act had maintained a lower threshold; this year, that provision ended.

Once there, your co-payment is a flat $3.60 to $8.95, or 5 percent of the drug’s cost, whichever is higher. (Not lower.)

• Part D has never capped out-of-pocket costs, even when you reach the supposedly safe shore of catastrophic coverage. Your 5 percent co-payment lasts the rest of the year.

. . .

All of this takes place against the backdrop of rising drug prices generally. From 2015 to 2017, more than a million Medicare beneficiaries each year passed the threshold for catastrophic coverage — more than twice the number when Part D began, according to a Kaiser Family Foundation analysis.

Oh and choosing the right Part D program is complicated.  The article notes that Congressional action is needed to reduce the drug prices. And what if the ACA is repealed??

HHS 2020 Poverty Guidelines

HHS has released the 2020 Poverty Level Guidelines.

2020 POVERTY GUIDELINES FOR THE48 CONTIGUOUS STATES AND THE DISTRICT OF COLUMBIA

Persons in family/household Poverty guideline

1 ..................................................$12,760

2 ..................................................17,240

3 ..................................................21,720

4 ..................................................26,200

5 ..................................................30,680

6 ..................................................35,160

7 ..................................................39,640

8 ..................................................44,120

"For families/households with more than 8 persons, add $4,480 for each additional person."

Alaska and Hawaii are also available in the publication.

PACE Program and Adult Day Care

Kaiser Health News (KHN) recently published a story about a PACE program, Government-Funded Day Care Helps Keep Seniors Out Of Nursing Homes And Hospitals.

The services provided by PACE, a national program primarily funded by Medicaid and Medicare, are intended to keep people 55 and older who need nursing home levels of care at home as long as possible and out of the hospital.

The program is more important than ever as baby boomers age, its proponents say.

“The rapidly growing senior population in California and across the country will put enormous strain on our current fragmented, and often inefficient, health care delivery system,” said Tim Lash, president of Gary and Mary West PACE. California officials consider PACE an integral part of the state’s strategy to upgrade care for aging residents.

Consider the cost-savings to states with PACE programs, as well as the number of folks, typically dual eligibles, who participate. According to the story,

The National PACE Association said data it collected for 2019 shows seniors enrolled in PACE cost states 13% less on average than the cost of caring for them through other Medicaid-funded services, including nursing homes.

. . .

PACE participants who do not receive government medical benefits can pay out of their own pockets. At Gary and Mary West, the tab ranges from $7,000 to $10,000 a month, depending on the level of care.

Nationally, 50,000 enrollees participate in PACE programs at over 260 centers in 31 states. In California, PACE serves nearly 9,000 vulnerable seniors at 47 locations.

PACE provides the same services as under Medicare and Medicaid, and use of team from various disciplines to provide care. Patients often have chronic conditions and  almost 2/3 of them have some level of cognitive difficulty.

Check it out.

 PACE enrollees commonly have conditions such as vascular disease, diabetes, congestive heart failure, depression and bipolar disorder.

Elder Justice Mapping Webinar

Register now for an upcoming webinar from the Department of Justice webinar on Mapping Elder Justice Networks.  The webinar is scheduled for January 21, 2020  at 2 p.m. est.   Here is info about the webinar

Join us for the webinar, Mapping Elder Justice Networks, where we will introduce the new Elder Justice Networks Locator. 

The Locator is a map designed to help elder justice professionals to locate and collaborate with elder justice networks/teams across the nation.  Networks will be added in an on-going fashion.

This webinar will discuss the development of this resource, walk through how to find and use the Locator, and explain how to submit your network for inclusion.

Mapping Elder Justice Networks

Talitha Guinn-Shaver, Presenter

The Locator represents the teams that have provided information to participate in this project. Networks interested in being included in the Locator may submit their network name, type, address, web address and email to elder.justice@usdoj.gov. Please note that for-profit organizations and dot coms cannot be included.  Other rules may apply.  Submission is not a guarantee of inclusion in the Locator.

To register for this webinar, click here.

Medicare Mistakes Need Do-Over?

Last week Kaiser Health News reported on mistakes on the Medicare website, which may have causes probelms for beneficiaries chosing their plans during open enrollment. Website Errors Raise Calls For Medicare To Be Flexible With Seniors’ Enrollment explains the extent of the problem.

The overhauled Plan Finder debuted at the end of August, and 2020 plan information was added in October. Over the past three months, Plan Finder problems reported to CMS by the National Association of Insurance Commissioners, the National Association of Health Underwriters, and state and national consumer advocates included inaccurate details about prices, covered drugs and dosages, and difficulty sorting and saving search results, among other things.

CMS made almost daily corrections and fixes to the website, which is the only tool that can compare dozens of private drug and medical plans ― each with different pharmacy networks, covered drugs and drug prices. The website provides information for more than 60 million people with Medicare and their families, as well as state Medicare counselors and the representatives who answer the 800-MEDICARE help line.

Unsurprisingly, the article notes that some folks signed up before corrections were made, which may not become apparent to them until they use the plan in 2020.  Which leads me to my next point.

Sen. Bob Casey of Pennsylvania, the senior Democrat on [the Senate Special Committee on Aging], also said Medicare needs to reach out so people know they can request a “special enrollment period” if they discover next year they made a wrong choice due to inaccurate Plan Finder information.

“People with Medicare must be aware that this reprieve exists and should not have to jump through hoops to qualify,” he said. The administration should “use all means necessary” to let beneficiaries know about their options for a special enrollment period.

Fifteen Senate Democrats, led by Casey, sent a letter  Thursday to Medicare Administrator Seema Verma asking the agency to “widely publicize the existing SEP for people who were misled by information” in the Medicare Plan Finder and to make switching plans easy.

The Associated Press reported on that at the end of last week. Senators urge Medicare to allow seniors a drug plan do-over:

 

In its statement Friday, Medicare said it wants to ensure that seniors “are confident in their decisions and happy in the coverage they choose.”

Medicare said it’s always had the ability to grant do-overs, “but this year we’re doubling down on ensuring that choosing their Medicare coverage is a simple and painless experience for beneficiaries.”

Medicare officials told AP that if seniors had problems with the plan finder and were unhappy with the outcome, they could call 1-800-MEDICARE and request to make a switch.

Agency officials said beneficiaries don’t need to use any technical language, only explain what their issue is to the call center representative. No documentation or screen shots will be required.

Stay tuned. This may not be over.

Elder Law Issues as Part of Candidate Platforms

Although our semester has ended, my students are still paying attention to the elder law issues in the news, including those issues that are being mentioned as part of the presidential candidates' platforms. During the semester, we talk abut news stories regarding elder law issues or elders.  We may have started with a discussion of Medicare for All, but we soon moved beyond that onto other issues.  Most recently, a student send me a link to a YouTube video about the importance of long-term care, put out by one of the Democratic candidates for President (it's important right now to state that I'm not focusing on politics or a particular candidate, but that candidates are realizing the importance of issues affecting elders in the U.S.). In this video, the 102 year old, Dorothy, has run out of money for her care. Even though it's ultimately an endorsement about a specific candidate, the points made in the video are important and are faced by so many older Americans. 

Thanks Jenna for sending this to me and good luck on your exams!

2020 Medicare Premiums Released by CMS

In case you missed this, a couple of weeks ago CMS released the Medicare premium and deductibles amounts for 2020.

Here are some of the more important numbers for 2020  from the CMS notice:

The Medicare Part A inpatient hospital deductible that beneficiaries will pay when admitted to the hospital will be $1,408 in 2020, an increase of $44 from $1,364 in 2019. ...  In 2020, beneficiaries must pay a coinsurance amount of $352 per day for the 61^st through 90^th day of a hospitalization ($341 in 2019) in a benefit period and $704 per day for lifetime reserve days ($682 in 2019). For beneficiaries in skilled nursing facilities, the daily coinsurance for days 21 through 100 of extended care services in a benefit period will be $176.00 in 2020 ($170.50 in 2019).

As for Part B, "[t]he standard monthly premium for Medicare Part B enrollees will be $144.60 for 2020, an increase of $9.10 from $135.50 in 2019. The annual deductible for all Medicare Part B beneficiaries is $198 in 2020, an increase of $13 from the annual deductible of $185 in 2019."

The release also includes the 2020 Part B monthly premium adjusted amounts for higher-income beneficiaries.

 

Issue Brief on Medicare Part D

The Kaiser Family Foundation has released its November, 2019 issue brief, focused on the costs of Medicare Part D.  Medicare Part D: A First Look at Prescription Drug Plans in 2020 offers these key findings

• The average Medicare beneficiary will have a choice of 28 PDPs in 2020, one more PDP option than in 2019, and six more than in 2017, a 29% increase.A total of 948 PDPs will be offered in the 34 PDP regions in 2020(plus another 11 PDPs in the territories),an increase of 202 PDPs since 2017.

• PDP premiums will vary widely across plans in2020, as in previous years(Figure 1). Among the 20 PDPs available nationwide, average premiums will range sixfold from a low of $13 per month for Humana Walmart Value Rx Plan to a high of $83 per month for Express Scripts Medicare Choice

• Two-thirds of Part D enrollees without low-income subsidies (9.0 million enrollees) will see their monthly premium increase in 2020 if they stay in their same plan, while one-third (4.3 million) face premium decreases. As an example, the 1.9million enrollees without low-income subsidies in the Humana Walmart Rx Plan, the third most popular PDP in 2019,will see their monthly premium double in 2020, from $28 to $57, unless they switch plans.This is due to plan changes and consolidations, with Humana consolidating two of its DPs (Humana Walmart Rx and Humana Enhanced) into one PDP or 2020 and renaming it Humana Premier Rx, with a $57 monthly premium.

• The estimated national average monthly PDP premium for 2020 is projected to increase by 7% to $42.05, weighted by September 2019enrollment. The actual average premium in 2020 may be lower if current enrollees switch to, and new enrollees choose, lower-premium plans during open enrollment.

• In 2020, all PDPs will have a benefit design with five or six tiers for covered generic, brand-name, and specialty drugs,and cost sharing other than the standard 25% coinsurance, similar to 2019. More than eight in 10 PDPs (86%) will charge a deductible, with most PDPs charging the standard deductible of $435 in 2020.

• Among all PDPs, median cost sharing is $0 for preferred generics and just $3 for generics, but$42 for preferred brands and 38% coinsurance for non-preferred drugs(the maximum allowed is 50%), plus 25% for specialty drugs (the maximum allowed is 33%).

• Medicare beneficiaries receiving the Low-Income Subsidy (LIS) will have a choice of seven premium-free PDPs in 2020, on average, one more than in 2019. In 2020, nearly 20% of all LIS PDP enrollees who are eligible for premium-free Part D coverage(1.3 million LIS enrollees) will pay Part D premiums averaging $18 per month unless they switch or are reassigned by CMS to premium-free plans.

The full issue brief is available here.