Monthly Archives: October 2015

Medicare: Open Enrollment and Special Enrollment Period

It’s Medicare open enrollment time. I thought I’d add this note to all the information out there. Do review your plan. In these days of “managed care” and “Medicare Advantage” coverage can change year to year. It’s not the old days when your health insurance coverage did not change. Medicare It is always good advice to review your current health plan with available options. I can understand that many folk consider this a needless annoyance, but it’s the way things are.

Review your basic Medicare plan and your Medicare D, prescription coverage. companies do change their plans based on their cost experience and your costs could go up dramatically. It is prudent to check and if changes would increase your costs then, shop around.

Two Situations: 1. Your health has stayed the same, but you find you are making significant payments every month on co-pays and deductibles. 2. You have had serious health problems in the past year.

1. Your health status has not significantly changed.

a) Traditional Medicare:
If you have standard Medicare with a Medigap plan, you may expect your coverage has not and will not change.

b) Medicare Advantage:
Review your healthcare outlays for the past year. Review your plan to see if those have gone up. Check against comparable plans. You may expect to find no reason to change.

Check to make sure that your doctors are still in your plan.

c) Medicare D – Prescriptions
Make a list of the prescriptions and dosages you take. Review the plan “formulary” against the prescriptions and dosages that you are taking. Review against other plans. We have found that in some plans, some dosages of the same medication are off the plan. For example a 10 mg version of a medication may be in your plan, but the 5 mg may not. If your doctor prescribes the 5 mg version, you may ask can you get the 10 mg and cut it in half? If not you may find a plan that does include the 5 mg version.

2. Your health has significantly changed for the worse.

As a general rule Medicare Advantage plans favor the healthy retire and traditional Medicare favors the ill. While the monthly insurance premium for traditional Medicare may be more, a person may receive substantial savings in lower co-pays and deductibles.

There is also the problem of the “network.” Traditional Medicare has no “network” but most Medicare Advantage plans do. For example you may not be satisfied with the patient’s doctor and want to change to one about whom you’ve heard good reports. If that doctor is not in your network you will have much higher co-pays.
In the long term care setting some families have found that a preferred nursing home is not in the network and the closest network nursing home is miles away.
Here’s a little known tip, if you are in skilled care you have open enrollment.

Special Enrollment Period: “Long Term Care”

If you are currently in a long term care setting, hospital or nursing home, you can change your Medicare plan and after you leave you have two months to change your plan again. As CMS says:
“Your chance to join, switch, or drop coverage lasts as long as you live in the institution and for 2 full months after the month you move out of the institution.”

That means if you are in a hospital and you are going to a “skilled nursing facility” (nursing home) for rehab you are in a “special enrollment period.” If your Medicare Advantage plan does not include a nursing home in your community you can switch to traditional Medicare, finish your rehab, go home and change back (if you wish) to your Medicare Advantage plan.

Should we sue the nursing home?

This is a difficult, but necessary subject to write about. It is a difficult subject to begin with and it is not an easy legal subject either. It is necessary because the patient’s advocate must have some idea of what to expect in a nursing home.

Let us say for example a wife has placed her husband in a nursing home. He was transferred there from the hospital and the family hoped he’d be home in a few weeks. After a few weeks the call comes. “Dad, died last night.”

It happens. It is a report I hear perhaps too often. We talk a bit, I give condolences. I hear the doubt and the dashed hope in the voice. It is part recognition that Dad was seriously ill and part questioning “did it have to happen?”

Did it have to happen? We all know it is true: People die in nursing homes. These are places for very sick and weakened people. Nobody goes there unless it is the last option. It can be a dangerous place to be even if you are healthy. Like schools where kids spread whatever is going around, nursing homes always have the current contagion. Except these are not healthy students. Instead of a sniffle a resident gets pneumonia. The antibiotics cause conflicts with the residents other medications and the resident becomes even sicker. And, that is just part of the disease process. You are weakened, much more susceptible and much more likely to have dangerous complications.

But, there are times when death or injury is not the result of “the disease process” but it is the fault of bad care.How can one get a sense of when we might look for other causes of complication, injury or death? I spoke with a prominent nursing home attorney and here is a cluster of “should not happen” kinds of cases. Not every one is the fault of bad care, but they do raise the question “Why did this happen?”

  • Falls: Did the resident fall while being attended to by staff?
  • Choking death: High concern in Parkinson cases. Why did not staff intervene?
  • Bed sores, stage IV. Why were these not observed and treated before?
  • Wandering out of the facility
  • Assault by staff or another resident.

On a quick review one can see that none of these cases would be thought to be a “result of the disease process.” While that first thought may not be accurate, these are the kinds of cases that merit review.

There are the other cases where answers to questions are not so obvious. Suppose your family member has bruises over her body. That could be evidence of abuse or improper handling of the patient. They might also simply be a reflection of the fragile state of the resident. She may bruise easily with ordinary assist with transfers.

One might notice that there are some problems not listed. Examples include giving a resident the a medication that was supposed to be discontinued, or failing to give the medication to the resident. What if a resident’s condition deteriorates and is rushed to the emergency room near death? Did the lapse in treatment cause the harm or was it “the disease process?” These kinds of cases involve the question of malpractice.

Malpractice involves the judgment of a licensed professional such as a doctor or nurse. For example suppose a resident wandered out the door more than once. Suppose the treatment was a nightly sedative to which she reacted very badly and which ultimately lead to her death through a series of complications. One may easily conclude that the doctor’s decision to give the prescription lead to the resident’s death. But it is not that easy. This was an exercise of medical judgment and these always have necessary risks. That is what doctors do. Balance benefits and risks.

So, what does the family do when they see their resident’s condition getting worse? What about prevention of death or serious injury? This is another subject in itself, but here is a quick and perhaps obvious tip. Be a patient advocate.

A nursing home is not a place for a passive patient advocate. If your family member fell, find out what happened and what is being done. Watch for sudden weight loss, signs of dehydration or sudden confusion. You might do the resident’s laundry if you consistently observe soiled clothing. While incontinence is unpredictable, the resident should receive reasonably prompt attention. Start inquiring if you observe withdrawn or fearful behavior toward staff. Put dates on bandages to monitor how frequently those are changed. Do you question whether a problem is being treated? Ask the nurse to review the chart you can see what conditions are being addressed and get an idea of what should be happening. The resident’s patient advocate has a right to see the medical chart. If you are denied access you can contact the assigned Long Term Care Ombudsman assigned to the facility.

Bottom line: if you have a question, give us a call. We will refer you to an attorney experienced in nursing home injury cases.

A Pre-nuptial Agreement Will Not Protect Assets

I came across an interesting blog entry by New Jersey attorney Linda Ershow-Levenberg.  She writes about some of the legal complications in answering the question: “If my spouse and I have a pre-nuptial agreement, will I have to use my money to pay for his/her care?” Her response is an example of good lawyering.  It is a good read and shows how a simple question results in the very complicated answer “Maybe.” check it out on her blog Linda Ershow-Levenberg blog

In Michigan pre-nups are no protection from Medicaid spend down, though apparently  for reasons different from the New Jersey program. Michigan merely inquires whether either spouse can access an account.  If the answer is yes, then the account is a “countable asset.”

That is not to say that a pre-nup is not protection from a spouse’s creditors.  Medicaid stands on a different footing than traditional marital creditors. A pre-nup may well shelter assets from a spouse’s creditor.  But Medicaid is different.

You might understand the difference by a phrase  “You want us to pay the nursing home?  Well, here are our rules.  Don’t like ’em? Bye.”   Ever being the lawyer I note that many of the Michigan Medicaid policies conflict with the federal program requirements.  And that, is a series of posts for another time.

Let me have your questions or comments,

Forced – Compulsory Arbitration. An alarming trend.

A disturbing and perhaps dangerous trend has developed and is growing in threat. It is forced arbitration in senior – elder residential agreements. These used to be limited to nursing homes, but now they are being found in admission agreements for what would ordinarily be routine rental agreements in independent living senior apartments and “assisted living” facilities.

What’s going on? Large chains are buying up smaller residential facilities and their lawyers have replaced a simple rental agreement with one that is designed to protect the owners of the property at the expense of the residents. What does that mean? Let’s give the subject some context.

The focus of this post is compulsory not voluntary arbitration.  Let’s be clear. There are times a person would choose arbitration over a jury trial.  The claim may be relatively small or a matter of simple objective facts, such as how much is owed on a loan.  Business companies often choose to put arbitration in a contract with other businesses because they have mutual experience in a field.  They find that arbitrators familiar with the technicalities of the field can render a speedy decision without a big investment of time.  Consumers do not have the same level of experience that businesses have, especially when it comes to moving in a senior living communities.  Why then don’t businesses offer the resident-consumer to arbitrate after a dispute arises? A consumer could consult with an attorney to see if they “had a case” to take to court. If the attorney advised that it would cost too much to go to court the consumer would rationally choose arbitration.

Let’s look at the consumer context.  In Michigan and many other parts of the country, most folks do not live in apartments but live in their own homes. When elders move it is because they cannot take care of the home anymore. It may be physical reasons such as reduced mobility makes getting up and down stairs difficult and dangerous. And, what about snow and ice in the winter! The reason for the move may be cognitive decline such that taking care of a house is just too much business and bother to take care of. In an independent living apartment meals are served, no need to go outside in the winter and there are no stairs. And, “all you have to do is write one check a month.” What all of this means is that the elder is in a declining state of health and will continue to decline after the move. Families expect the facility to provide a safe place to live and take care of their parent. That does not always prove to be true. What may be safe for the average adult may not be safe for the elder.

A story may make the point clear. Suppose Grace is in her mid-80’s. She had to move out of her home because she could not handle the steps in her house anymore. She uses a cane because of arthritis in her hips and knees, and has difficulty walking beyond a few steps. She has received a new prescription and forgot if she took it after dinner, so she took it again. Now she is feeling very confused and wants to go “up front” to get help. She goes out of her apartment and turns the wrong way. She thinks she finds the “door to the office” so she goes through it. It locks behind her. She is outside. It is January and freezing cold. What will happen to her? Will she get back in? Will she be able to raise anybody’s attention? If she does not get back inside in a few minutes she will die. These kinds of things can and do happen.

If Grace should suffer serious injury – say she tries to walk to the front door and falls on ice, ends up in a nursing home or  dies from her injuries- the family will want to sue. That is when they will run into the compulsory arbitration agreement.  If there were no arbitration agreement the senior living company would likely turn the matter over to their insurance company and a settlement would be worked out after the facts are known to both sides. There would be no trial.  However, when there is compulsory arbitration then the incentive to settle a case is less.

Again, in theory arbitration is good. The reader can search for articles praising the benefits of arbitration.  But, arbitration is good if it is fairly chosen by both sides to a dispute, not arbitrarily imposed by one side. One would think that if a facility truly believed that it was offering the consumer-resident-to-be a benefit the arbitration agreement would:

  • be optional and not a condition of move- in
  • allow the resident, prospective resident, or responsible party the right to opt out of the arbitration agreement within 30 days of formation
  • be presented as a stand-alone document or clearly highlighted portion of a residency agreement
  •  not limit the residents’ rights or remedies available under state and federal law
  • support the right of judges to continue to invalidate unlawful arbitration agreements.

What’s the “take away”? If you find an arbitration agreement in a rental agreement, do not immediately sign it. What can you do? Here are some tips.

  1. Ask the admission person if you can take the entire package home and review it. If you can then have it reviewed by a lawyer. Remember, arbitration agreements are legally binding and aggressively enforced by company lawyers.
  2. If you cannot take it for review first, then see if it has a time period, such as 30 days, to change your mind. You might then sign and take your copy to your lawyer for review. If after review you decide you do not want the company’s version of arbitration, you can cancel your acceptance.
  3. See if you can decline to sign that part of the agreement, make changes by crossing out or writing by your signature that you decline arbitration.
  4. If you can make no changes, then look for another place.
  5. What if this place is the “only option” for Mom and you either “take it or leave it.” In that case have Mom sign. Her diminished mental capacity may work as a defense to the company lawyers claiming her choice of arbitration was “knowingly made.”