Elder Law in 2017 Review

An in-depth review of legislative, regulatory and policy updates for elder law in 2017.

Call for a Harrisburg elder law attorney.
Hazen Law Group
2000 Linglestown Rd #202
Harrisburg, PA 17110
https://www.hazenlawgroup.com

Transcript

1. Marielle F. Hazen, CELA Hazen Law Group hazenlawgroup.com Elder Law in 2017 Review Legislative, Regulatory and Policy Update
2. Medicare and Medicaid Update
3. Latest Medicare & Medicaid Numbers Appendix 1
4. New Medicare Appeals Rules • Settlement Agreement • Lessler v. Burwell (now captioned Exley v. Burwell), No. 3:14-cv-1230 (JAM) (D. Conn. June 10, 2015) • Beneficiary appellants receive priority • Final Rules • Published 01/17/2017 • Effective 03/20/20017
5. Medicaid Fair Hearing/ Appeal Process Final Rule Finalizes a subset of provisions included in proposed rulemaking issued 01/22/2013. Includes provisions regarding eligibility notices and the appeals process.
6. Medicaid Fair Hearing and Appeal Process - Final Rule a t t h e F e d e r a l R e g i s t e r – 1 1 P u b l i s h e d 1 1 / 3 0 / 2 0 1 6 E f f e c t i v e 0 1 / 2 0 / 2 0 1 7
7. Content of Eligibility Notices • Establishes minimum standards for content of eligibility notices (§435.917(a)) • Approval notices must include (§435.917(b)): ◦ Basis and effective date of eligibility ◦ Benefits and services available ◦ Premium and cost sharing obligations ◦ Procedures for reporting changes ◦ Appeal rights • Denial/termination notices must include clear explanation of reason for ineligibility
8. Expedited Fair Hearing Requires states to establish and maintain an expedited fair hearing process (§431.224). BHA is finalizing policies for implementation. Pilot starts in August with CAO Notices. Full implementation date projected for November 2017. Pilot Counties: Armstrong, Beaver, Butler, Cameron, Clarion, Clearfield, Clinton, Crawford, Elk, Erie, Forest, Jefferson, Lawrence, McKean, Mercer, Montgomery, Potter, Venango, Warren, Washington, Westmoreland, and York
9. Expedited Fair Hearings Establishes standard for expedited fair hearings: l Individuals can make a request “if the agency determines that the time otherwise permitted for a hearing under §431.244(f)(1) could jeopardize the individual’s life, health or ability to attain, maintain, or regain maximum function.” l Created a timeframe for final action: l 7 days for eligibility-related matters (§431.224, 431.244(f)) l 3 days for benefit or services related matters (§431.224, 431.244(f))
10. Additional Fair Hearing Provisions • Makes fair hearing requests and expedited hearing requests available through all modalities (§431.221) • Requires states to accept any method for withdrawal of a fair hearing request (§431.223) • Clarifies circumstances when an applicant or beneficiary can request a fair hearing (§431.220) • Provides for a fair hearing system that is accessible to individuals who are limited English proficient and individuals with disabilities and that complies with anti-discrimination statutes and regulations (§431.205)
11. Observation Status Update • Notice of Observation Treatment and Implication for Care Eligibility Act (NOTICE) • Effective March 8, 2017 • Patients must be notified of status and implications • Standardized form – Medicare Outpatient Observation Notice (MOON)
12. Improvement Standard Update • Corrective Statement approved 2/16/2017 by the U.S. District Court for the District of Vermont • Intended to make clear Medicare coverage available to maintain condition or slow deterioration
13. Community Health Choices Implementation Image Source: http://www.nymetroparents.com/manhattan/article/how-to-know-if-your-childs-eczema-is-caused-by-allergies
14. CHC Phased Roll-out 14 1 2 3 3 3 Pha se - Dat e January 2018 July 2018 January 2019 1 2 3
15. Managed Care Organizations 1. AmeriHealth Critas 2. PA Health and Wellness (Centene) 3. UPMC for You
16. CHC Target Populations Enrollment into CHC will be mandatory for: • Most consumers dually eligible for Medicare and Medicaid • People receiving services through OLTL Waivers: ◦ Aging ◦ Attendant Care ◦ COMMCARE ◦ Independence ◦ OBRA (most but not all) • Medicaid beneficiaries in nursing homes ◦ Except for residents in state-operated nursing facilities, including state veterans’ homes 16
17. Populations Not Included in CHC • Consumers under age 21 • Consumers in Intellectual Disability Waivers – Consolidated Waiver and Person/Family Directed Supports • Consumers in Developmental Disability Waivers – Adult Autism or Adult Community Autism Program • LIFE program will continue. Individuals 55 & older can choose between LIFE and CHC • Medicare coverage choices will not change
18. • Long-term Services and Supports either Nursing Facility Services or Home and Community-Based Services. • Physical Health Services such as: ◦ Hospital-based services ◦ Pharmacy ◦ Primary Care Physician and Specialist Services ◦ Durable Medical Equipment ◦ Transportation ◦ Emergency Services ◦ Hospice CHC services include:
19. Medicaid LTSS System Before April 1, 2016 ASSESSMENT / LEVEL OF CARE FINANCIAL DETERMIN -ATION ENROLL- MENT ENROLLMENT CHOICE COUNSELING SERVICE COORDIN- ATION OTHER LTC SERVICES Under 60 60+ AAAs AAAs AAAs AAAs AAAs CAOs CAOs Maximus Other Other Other Other Other
20. Medicaid LTSS System Under CHC FINANCIAL DETERMIN- ATION ENROLLMENT & CHOICE COUNSELING Under 60 60+ Aging Well (AAAs) CAOs CAOs MCOs IEB IEB Administrative LTC Service Service Coordination Other • Billing • Paymen ts • Contract s Aging Well (AAAs) • NF • Adult Day • Cognitive Rehab • Home Health • Personal Care MCO Contract Out AAAs Other FUNCTIONAL ELIGIBILITY DETERMINATION
21. Duals in Nursing Homes in CHC Current Nursing Home system: ◦ NH responsible for providing or arranging all care ◦ NH bills the patient the patient pay amount ◦ Consumer must be in NH that accepts Medicaid and Medicaid pays the nursing home Nursing Home system under CHC: ◦ NH responsible for providing or arranging all care ◦ NH bills the patient the patient pay amount ◦ Consumer in NH that is in network with CHC plan* and CHC plan pays the nursing home * Exception for those in a NH when CHC starts in region 21
22. Health Care Reform • ACA Reform Bills • House American Health Care Act • Senate Better Care Reconciliation Act • Cruz Amendment • Repeal Now/Replace Later • Appropriations Bills • Waivers • Social Security Trustees 2017 Report
23. Special Needs Planning
25. Advantages of PA ABLE Accounts For Pennsylvania residents, there are some advantages to opening an ABLE account through the PA ABLE Savings Program. 1.For Pennsylvania taxpayers, the earnings are tax deferred and, if used for Qualified Expenses, are tax exempt. 2.Assets held in a PA ABLE account are not subject to Pennsylvania inheritance tax. Assets held in any other state’s ABLE program are subject to inheritance tax. 3.For Pennsylvania state proceedings, assets held in a PA ABLE account are protected from creditors’ claims. Assets held in another state’s plan do not have this protection. 4.For accounts opened by an Authorized Individual, that individual retains access to the account even after the Account Beneficiary reaches age 18.
26. Four Important ABLE Resources The ABLE Act SSA POMS effective 03/21/2016 IRS Interim Guidance – Notice 2015-81 PA ABLE Savings Program Disclosure Statement 1. 2. 3. 4.
27. Bills Pending To Revise ABLE H.R.1874/S.817  Would raise the age of onset of disability for eligibility in the program from before age 26 to before age 46. H.R. 1897/S.816  Would allow a transfer of funds from a 529 account to an ABLE account. These contributions would count towards the annual contribution limit. H.R. 1896/S. 818  Would increase the annual contribution limit for individuals who work by the amount they earn, up to the federal poverty level (currently $11,770).
28. Special Needs Trust Fairness Act • 21st Century Cares Act, Section 5007 • Enacted December 13, 2016 • Applies to trusts established on or after 12/13/16 • Resource counting provisions of the SSI trust statute do not apply to a trust: ◦ Which contains the assets of an individual under age 65 and who is disabled; and ◦ Which is established to through the action of the individual, a parent, grandparent, legal guardian or a court; and ◦ Which provides that the State(s) will receive all amounts remaining upon the beneficiary’s death up to the total medical assistance paid.
29. What Happened to the Proposed VA Rulemaking?
30. Estate Planning Image Source: http://evolveandsucceed.com/how-to-make-more-subscribers-and-clients-with-one-email/
31. Powers of Attorney • Act 79 of 2016 • Enacted July 8, 2016 • Act 103 of 2016 • Enacted October 4, 2016 • Amends §5601(b)(3) - individual signing a power of attorney on behalf of the principal cannot do so by mark. • Amends § 5601(b) to clarify that nothing in this section prohibits an acknowledgment of a power of attorney before a member of the bar of the Pennsylvania Supreme Court, provided that the attorney taking the acknowledgment does not act as one of the two witnesses. • Amends § 5601(e.1) to clarify that subsection (b)(3), (c), and (d) (relating to requirements for execution, notice and acknowledgment) and § 5601.3 (relating to agent’s duties) do not apply to commercial powers of attorney.
32. Portability Election • IRS Revenue Procedure 2017- 34 • Issued June 9, 2017 • Provides simplified method for certain taxpayers to obtain an extension of time to make a portability election.
33. Lease Terminations • Act 116 of 2016 • Enacted November 2, 2016 • Effective January 1, 2017 • Provides Executor ability to terminate lease upon 14 days written notice on the later of the last day of the second calendar month following the tenant’s death or upon surrender of the unit
34. Revised Federal Nursing Home Regulations Image Source: http://evolveandsucceed.com/how-to-make-more-subscribers-and-clients-with-one-email/
35. NH Regulations Implementation Phase 1 Effective 11/28/2016 Includes most resident rights Phase 2 Effective 11/28/2017 Would allow a transfer of funds from a 529 account to an ABLE account. These contributions would count towards the annual contribution limit. Phase 3 Effective November 28, 2019 Would increase the annual contribution limit for individuals who work by the amount they earn, up to the federal poverty level (currently $11,770).
36. Care Planning & Discharge Planning Assessments Baseline Care Plans Comprehensive Care Plans Discharge Plans
37. Drugs and Antipsychotic Medications 1.Psychotropic Drugs 2.PRN Drug Orders 3.Drug Regimen Review
38. Involuntary Transfer and Discharge 42 C.F.R. §483.15(c).
39. Nursing Services Staffing In-Service Eduation Waivers
40. Admission
41. Visitation Written Policies Notice
42. Readmission after Hospitalization Bed Holds Grievances Rights and Policies
43. Quality of Care – Revised Sections Skin Integrity Mobility Incontinence Assisted Nutrition & Hydration Respiratory Care
44. Quality of Care – New Sections Pain Management Trauma- informed Care Bed Rails
45. Hazen Law Group 2000 Linglestown Road, Suite 202 Harrisburg, PA 17110 (717) 540-4332 https://www.hazenlawgroup.com