Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, April 29, 2013

Article on the 2010 MIPPA Legislation

Robert BloinkRobert S. Bloink (Visiting Assistant Professor of Law, University of South Dakota Law School) recently published an article entitled, Putting Boomers to Pasture: Does the 2010 MIPPA Legislation Reinforce the Nursing Home Bias?, 33 Pace L. Rev. 152 (Winter 2013). Provided below is the introduction to his article:

Unfunded health related costs are the greatest financial uncertainty facing the baby boom generation as they enter retirement years. The vast majority of those costs will relate to home and institutional based health care services provided in the last months of their lives. When presented with the choice of receiving such end-of-life care in a home based setting versus an institutionalized setting, almost every senior will opt for home based care. Prior to 2010, the Medigap at-home recovery benefit covered expenditures incurred in connection with in-home skilled medical care covered by a Medicare policy, such as personal care services that many seniors require in order to avoid a nursing home stay. The at-home recovery benefit was eliminated by the Medicare Improvements for Patients and Providers Act (“MIPPA”) in 2010. The Supreme Court took a decidedly different approach regarding access to home based health care options for this Medicaid-eligible senior population in Olmstead v. L.C. ex rel Zimring. The Olmstead decision acknowledged the long standing bias toward providing end-of-life health care services in an institutionalized setting, typically a nursing home, and, in an effort to have more of these Medicaid services provided in-home, required that “public entit[ies] . . . administer . . . programs . . . in the most integrated setting appropriate to the needs of qualified individuals with disabilities." Through this “integrated care” mandate, the Supreme Court recognized that the unjustified segregation of poor seniors in institutions was discrimination and that home and community based services (“HCBS”) care options must be provided where appropriate and reasonable in light of the patient’s needs. However, it is the engrained nursing home bias that non-Medicaid-eligible middle class boomers are likely to fall victim to, despite their stated intentions to the contrary.

Because administering end-of-life care in a nursing home setting has become the default in the United States, today current retirees who fail to make affirmative decisions about how and where their end-of-life care will be administered will have little choice but to receive long-term care in an institutional setting. Failure to affirmatively engage in planning for end-of-life care choices is often simply a byproduct of limited information and even less professional guidance available regarding such decisions. This article seeks to explore what lessons can be learned from how Medicaid end-of-life health care services are provided to the poor post-Olmstead, and how these lessons can be applied to middle class and upper middle class boomers. The article equally seeks to address how such lessons can be integrated into a meaningful dialogue with retiring boomers in a fashion that encourages discussion and decisions regarding end-of-life health care, as opposed to leaving such tough calls for surviving adult children.

To this end, Part II of this article begins by examining the hurdles seniors face in accessing HCBS after the defunding of the Medigap at-home recovery option in 2010, taking into account the difficulties involved in planning for long-term care that are caused by significant cost variances depending on the community in which the care is provided. This section further explores the impact of informal care provided by family members on the cost and effectiveness of long-term care performed in the home.

Part III provides a summary of the historical background of long-term care in the United States and explores the genesis and perpetuation of the bias toward providing end-of-life care in an institutional setting, despite the high costs of nursing home care, leading up to the integrated care mandate handed down by the Supreme Court in Olmstead. In Part IV, the varying degrees to which states have implemented the Olmstead mandate are examined to provide an empirical analysis of the cost-savings and reduction in nursing home admission rates that can be realized through effective and widespread implementation of HCBS programs. Spending on long-term care in states with underdeveloped HCBS programs is compared to expenditures in states offering comprehensive programs to determine the overall effect of increasing access to HCBS.

Part V identifies the planning gap that exists because of the reluctance of both advisors and clients to discuss end-of-life care. This section recognizes the often-conflicting motivations of financial advisors and attorneys, as well as the disinclination of clients toward discussing the end of their lives, both of which can lead to a joint failure to develop effective strategies for funding end-of-life care.

Part VI aims to encourage advisors and clients to ignite the dialogue on end-of-life planning. It discusses the possible imposition of filial responsibility upon adult children for the long-term care expenses of their elderly parents and suggests that selective enforcement of filial support statutes could promote financial preparedness among baby boomer retirees. This section also raises the notion that fiduciary liability may be a motivating force that could persuade advisors to initiate the planning dialogue. With both sides motivated to engage in fulsome planning for end-of-life choices, this article hypothesizes that this planning dialogue can be transformed from one that advisors avoid and clients recoil from into a conversation that imparts a message of empowerment and hope among seniors who can develop the tools necessary to control the course of their own end-of-life care.


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