Leaving Well: A Step-by-Step Process

Contemplating our own death is one of the hardest challenges we will ever have to face. Yet, if we want our dying to be meaningful and merciful, it is imperative that we think about it while we still can. Most of us want to die at home, in a familiar and peaceful setting surrounded by loved ones. We would much rather not spend our last moments in an emergency room or ICU, with strangers futilely pounding on our chests and our families relegated to the waiting room.

With those two alternatives in mind, we need to do all we can to keep control, as much as possible, of decisions that need to be made long before our final moments. We need to think carefully, well in advance, about what makes life worth living, and where pain and limitation have so eroded that quality of life that we would prefer not to go there.

These are notoriously difficult questions, but it is vital to address them anyway. For example, Terri Schiavo spent nearly half her young life unconscious in a condition known as a “persistent vegetative state,” being kept alive by a feeding tube. Her husband and friends claimed that before her severe brain injury, she said that she would not want her life sustained by machines. Unfortunately, she never put that wish in writing. On the other side, her devout family and right-to-life supporters insisted that she be kept alive despite her dire condition. After protracted litigation, Ms. Schiavo’s husband prevailed, the feeding tube was withdrawn, and, fifteen years after she was injured and never having regained consciousness, she was finally allowed to die.

Since her passing, the law has evolved nationwide to encourage us all to document final wishes, to avoid the anguish and uncertainty of Ms. Schiavo’s situation. There are a number of documents available in your state for that purpose. The umbrella term for these is “advance health-care directives.”

It’s our job as lawyers to help you sort through the various directives needed to express your wishes. Here is a step-by-step guide to begin the conversation about final wishes, and to understand which document does what when.

  1. If you are over the age of 18, appoint a health-care agent to speak for you when you can’t.

Decide who, among those who know you well, is best suited to take on this responsibility. That person must possess good communication skills, remain calm in difficult situations, and be able to deal flexibly with complexity that might arise in reconciling your wishes with available medical options. Depending on which state you live in, your agent can also be called a “health care proxy.”

Sit down with that person and discuss your wishes in various scenarios. This is not an easy conversation to have, but there are guides available to help you. Visit “The Conversation”

https://theconversationproject.org/

and download the starter kit.

http://theconversationproject.org/wp-content/uploads/2015/09/TCP_StarterKit_Final.pdf

  1. Health Care Power of Attorney (HCPOA)

Once you have had that conversation, visit your lawyer to name your agent formally  in an HCPOA document. HCPOA conveys legal authority on your agent or proxy to express your health-care decisions when you are unable to.

  1. HIPAA authorization

Your agent or proxy will also need access to your otherwise-private medical information. This is best done by a standardized document that complies with the federal Health Insurance Portability and Accountability Act (HIPAA). Without this authorization, your agent will be unable to obtain the medical information necessary to exercise the authority you want him or her to have.

Now armed with your agent and the HCPOA and HIPAA documents, you will know that if you were to meet with an accident or lose consciousness, you have chosen and empowered an advocate to speak for you. You should review and update these documents every five years or so.

The next three documents are important at the end of life. All these documents should stipulate that you desire comfort care, to keep you clean and as pain-free as possible. Remember, though, that you must create these documents while you are still able to know and communicate your wishes, so it’s best to do the next two documents at the same time that you do your HCPOA and HIPAA.

  1. Living Will (also known as Physician’s Directive)

This document is for use when you are not enjoying quality of life. Either death is imminent; you are in a persistent vegetative state; or you are permanently unconscious, permanently confused, or unable to care for yourself. If you have no awareness of others; can’t remember or understand or express yourself; or are unable to move, bathe, or dress yourself, it’s advisable to have expressed, in advance, the kind of treatment you want to receive or not receive.

A living will expresses your choice as to whether you do, or do not, want artificial measures that will merely prolong your life but not improve it. Those measures, among others, may include CPR if your heart stops, or breathing or feeding tubes, or repeated courses of antibiotics or chemotherapy.

You may also require physicians, and not your agent, to be the ones to decide whether to cease life-prolonging procedures as you would like. This decision will relieve your agent from the heavy responsibility of making that irreversible choice.

Living wills are legal in almost every state. Ask your lawyer. Don’t make this kind of document yourself. Otherwise you risk that the document may be misinterpreted, with drastic consequences.

  1. Specialized Directives

Medical decision-making varies depending on specific health conditions, so specific directives may be tailor-made for those conditions. For example, people suffering from advanced dementia benefit from a directive, in addition to the HCPOA or living will, specifically requesting that hand-feeding be ceased when the person can no longer speak, recognize loved ones, or move purposefully. Otherwise, caregivers are obligated to cajole or demand that the patient be fed by hand, taking advantage of a primitive reflex to open the mouth. This risks that the person may inhale the mush instead of swallowing it, in some cases causing pneumonia.

For this kind of condition, ask your lawyer to prepare a specific directive tailored for advanced dementia, using the directives created by

End of Life Washington or End of Life Choices New York.

If, however, you suffer from a neurological illness like Lou Gehrig’s disease (ALS) or advanced Parkinson’s, even though most of us would decline mechanical treatments, those same treatments may be important aids to preserve quality of life for people with those conditions.

Again, remember that you must create these documents while you still have the capacity to communicate your wishes. Living wills should be reviewed every six months, because wishes can change depending on the progress of the illness.

  1. POLST or MOLST

This is a brightly colored, short-form document that is primarily intended for emergency responders when the patient is frail and is likely to die within a year. It is designed to be immediately recognizable by hospitals and EMS personnel, to express that when the patient is unresponsive, cardio-pulmonary resuscitation (CPR) and other aggressive treatments are desired or not desired (DNR).

This document should be filled out in consultation with the patient’s physician. The acronyms stand for “physicians’ orders for life-sustaining treatment” or “medical orders for life-sustaining treatment.”  Many states provide for this kind of document.

  1. MAKE YOUR DOCUMENTS KNOWN

When it comes time to use your documents, they must be readily available. Give a copy of them to your agent or proxy, make sure they are included in your medical records, and, if you are in need of the POLST or MOLST, post it beside your bed or on your fridge where EMT knows to look for it. If your documents can’t be found, or if your agent or family don’t understand them or ignore them, you will have spent your time, effort, and money in vain.

But if all goes according to your wishes, you will have done your best to create a good death, one that is as meaningful as possible for all concerned. If we can assist in helping you with any of the documents above, we would be honored to do so.

How to avoid Medicare Scams

By far the largest types of insurance fraud are scams against government and private health care insurers. Scammers frequently target government insurance like Medicare by stealing newly issued medical ID cards and then stealing identities. The Coalition Against Insurance Fraud estimates that tens of billions of dollars are lost annually to these types of fraud. Additionally, medical identity theft is now a top complaint received by the Federal Trade Commission. Billing fraud is also responsible for huge losses to Medicare funds and is difficult to assess as it can be a billing error or intentional fraud.

How does this affect a senior on an individual level? Scammers typically pose as Medicare officials and ask people to pay for their new cards which in reality are free. Or they phone a potential victim with false news of a refund and ask for the person’s ID number and bank account number to deposit the refund. “Right now … everyone is being inundated with TV commercials, brochures and other official-looking documents in the mail about all the Medicare Advantage plans. It’s so confusing, and in an environment like that, fraud is rampant,” says Micki Nozaki of the California Senior Medicare Patrol. There are more than 50 million Medicare beneficiaries who can annually opt to swap Medicare Advantage and Part D prescription drug plans which provide scammers with the opportunity to prey on vast numbers of seniors.

The Centers for Medicare and Medicaid Services have a list of tips to help prevent fraud. The first and foremost is to protect your Medicare and Social Security numbers vigilantly. It suggests treating your Medicare card like you would a credit card and do not provide the number to anyone other than your doctor, or people you know should have it. Become educated about Medicare with regards to your rights and what a provider can and cannot bill to Medicare. Review your doctor bills carefully, looking for services billed for but not provided to you. Remember that nothing is free with regards to medical care; never accept offers of money or gifts of free services. Be suspicious of your provider if they tell you they know how to “bill Medicare” to pay for a procedure or a service that is not typically covered. Before leaving your pharmacy check to be sure your medication is correct, including the full amount prescribed and whether or not you received a generic or brand name medicine. If your prescription is in error report the problem to the pharmacist before leaving.

Remember Medicare will never visit, call, or email you and ask for personal information such as your Medicare number, Social Security Number, address, or bank account number. Medicare already has this information and does not need you to provide it. Even when Medicare issues new cards that no longer contain your social security number in April of 2019 you will not be required to do anything. You can assume that anyone who claims to be helping you with Medicare and asks for your personal or financial information is a scam artist so close the door, hang up the phone, or delete the email.

When it is time to compare plans be sure to meet with a trustworthy advisor. Some insurance representatives give the industry a bad name by selling you a policy or plan that does not suit your needs or your budget. Some agents go so far as to ask you to sign a release form allowing them to make decisions on your behalf. Never sign anything related to Medicare without first reading it carefully. Additionally, it is a good practice to have a family member or lawyer review the document before signing it.  The non-profit National Council on Aging (NCOA) has a free, brief assessment that allows you to compare plans online. You can also contact your local State Health Insurance Assistance Program (SHIP). SHIPs is a provider of free, federally-funded Medicare counseling via a trained volunteer or staff member.

Medicare fraud wastes billions of taxpayer dollars annually. Carefully review your medical bills and have inaccuracies corrected. Guard your personal information vigilantly and be wary of people asking you to provide that information. Meet with a trusted insurance advisor or compare medical plan options using the sites listed above. If you are unsure about something call Medicare directly for clarification.

If you have questions or would like to discuss anything you’ve read, please don’t hesitate to contact us.

Four Medicare Coverage Changes That Could Impact You in 2019

Every year, Medicare holds an open enrollment period from October 15 through December 7. Open enrollment isn’t just an opportunity for newly eligible seniors to sign-up for Medicare, it’s also for current participants who want to make changes to their existing coverage. Coverage can change in any insurance from year to year and it is important to research your plan compared to the coverage you need for the next year so you can choose the right plan for you during this time.

We find that many of our clients and their loved ones have questions. While you can always learn more on the Medicare website, including using the Medicare tool to research plan benefits, let us share four upcoming program changes to be aware of.

1. Medicare Part B premiums are likely to increase.

Medicare Part B covers medical services, such as X-rays, diagnostic tests, blood transfusions, chemotherapy, renal dialysis, and preventive care. In many ways, Part B works hand-in-glove with Part A hospital coverage, though it does comes at a cost.

Part B participants must pay a monthly premium, and it has been reported that the cost may increase slightly to a “standard premium” price of around $135.50 per month in 2019. An enrolled senior’s “actual premium” cost may vary, however, as it will depend on the cost of living adjustment (COLA) that applies to Social Security benefits next year. Many Part B enrollees have their premiums deducted from their Social Security checks. Higher income Part B enrollees will pay more, while Medicaid will cover Part B premiums for some low-income enrollees.

2. “Donut hole” is eliminated for prescription brand name drugs.

For years, there’s been a gap in Medicare prescription drug coverage that starts when a participant reaches their initial coverage limit (about $3,820 in 2019) and ends when they’ve spent about $5,100.

That gap is sometimes called the “donut hole,” and it’s been effectively eliminated for brand names drugs. Starting in 2019, enrollees will only pay 25 percent of brand name drug costs while in the previous coverage gap, which has been the long-term target goal of Congress, and 37 percent for generic drugs.

3. A new premium bracket for high-income Part B and Part D enrollees.

It may not affect most Medicare seniors, but in 2019 it is anticipated that individuals with an income of $500,000 or more, or $750,000 for married couples, will pay higher monthly premiums for Part B medical services coverage and Part D prescription drug coverage.

4. New Medicare ID cards to combat identity theft.

Don’t be surprised if your new Medicare ID card looks different next year. In an effort to combat identity theft and fraud, all cards will now have randomly generated ID numbers rather than Social Security numbers, effective April 2019.

We know this article may raise more questions than it answers for you. Do not wait to get the answers you need on your Medicare coverage so that you can find the right plan for you during Medicare Open Enrollment. Do you have questions in this or any legal issue? Do not hesitate to contact our office.

The Rise of Bankruptcy in the Lives of Aging Americans

The golden years are turning into bankruptcy red for many retired and aging Americans. While medical advances are keeping seniors alive longer, the associated healthcare costs in the quest for longevity are being off-loaded onto the older individual at a time when reduced income is a hallmark of senior living.  Older Americans are increasingly filing for consumer bankruptcy. According to the Consumer Bankruptcy Project, the population aged 65 or more are filing for bankruptcy at a two-fold increase, and there is nearly a five-fold increase in the percentage of seniors in the US bankruptcy system. The economic risk for seniors is running rampant, and the sad truth is currently 97 out of 100 people aged 65 and over are not able to write a check for $600 or more due to insufficient funds.

The sentiment among Americans is that their standard of living will increase at the age of retirement when it is quite the opposite. The typical retiree has set aside about $60,000 for their old age living, and more than 50% over the age of 55 have saved less them $50,000; as much as 40% of these workers have less than $25,000 set aside. The stark reality is none of these “nest eggs” are enough to see a senior through old age and the unforeseen disasters that can deplete what little has been saved.

One of the more common financial obstacles that create this bankruptcy scenario is a health issue. Medicare is not comprehensive. In the absence of a supplemental insurance plan picking up the non-Medicare funded 20 percent cost, a senior can be left with unforeseen operation and rehabilitation costs. Without full health care coverage, the cost of staying alive as a senior is practically prohibitive between prescriptions, treatments, surgeries, rehabilitation, and assisted care. The primary two options available to a senior to cover these costs of survival are credit card debt and loans.  Suddenly, at a time when most seniors should have very low monthly living costs, they find themselves back in a debt slave scenario with little or no income to address their healthcare debt.

Many seniors have concluded that retirement is not a part of their future as they will need a viable stream of income to avoid financial disaster. While this seems reasonable, it is not a good plan to assume one will be healthy enough to work forever. As we age, there is an increased probability that working will become impossible due to unforeseen illness. When this happens, debts begin to mount, and bankruptcy becomes a likely result. Additionally, the era of stable pensions afforded to a long time employee has gone by the wayside. Fewer companies even offer them anymore and those that do often modify and reduce pension benefits to meet corporate expectations of financial profits.

The cost of living rarely if ever is reduced over time and while social security benefits seem like the answer to a senior’s retirement years; these benefits seldom cover basic living expenses no matter how long an individual may have worked or how much they paid into the system. The senior who is faced with government social security benefits and very little additional income usually turn to credit cards to address the gap between low income and living expenses. This scenario takes a senior right back to debt slave mode. As many as two out of three seniors who file for bankruptcy cite credit card debt as one of the primary reasons.

Scams that target the senior population are becoming more sophisticated and prolific with the advent of technology. What used to be a “one to one” scam can now be distributed via email to thousands of targeted seniors who are online in greater numbers than ever before. Often the unsuspecting senior will make passwords or personal bank information available to what they believe is a legitimate request for information from what appears to be a valid email. Seniors can also fall prey to predatory lenders as many seniors cannot read the fine print or understand the consequences of their actions. When scam artists victimize a senior, the senior often loses a large chunk of their assets which in turn can put them in a bankruptcy scenario.

While it is impossible to know the exact future, it is possible to make reasonable plans for it. Learn the ways that you can protect yourself from becoming part of these bankruptcy statistics in your senior years. Even a modest plan is better than no plan at all. Seek the advice of trusted legal and financial professionals to help you understand what you can do to protect your future. Please feel free to contact our office today to discuss how we can help you with your planning.

 

 

Fraud for Profit in the American Hospice Care System

A newly released Inspector General Report from the Department of Health and Human Services exposes the vulnerabilities and fraud committed in the Medicare-funded hospice program. The report consolidates patient and Medicare payment data back to the year 2005 and concludes that some hospice care providers are neglecting patients and defrauding Medicare. The report calls into question the quality of hospice patient care as well as the financial integrity of the program itself.

Medicare pays for four levels of hospice care. In ascending order of cost of care the levels include: routine home care, general inpatient care, continuous home care, and inpatient respite care. Medicare-certified hospices provide the care, and the facility may be for-profit, nonprofit or government owned. Care can also be provided in the home, assisted living facility residences, skilled nursing or other nursing facilities. It is a complicated set of processes and regulations while the level of patient care needed keeps changing. Oversight of hospice industry practices needs to improve to stay affordable as a government program providing compassionate, end of life care. The Centers for Medicare and Medicaid Services is a crucial funding arm of these hospice services and are being charged to increase levels of scrutiny to detect problems.

DHHS Office of Inspector General Report

Incorrect or inappropriate hospice billing has cost hundreds of millions of dollars to the Medicare program. The current payment process incentivizes hospice providers to minimize services while seeking beneficiaries with uncomplicated needs. This tactic keeps the hospice cost down while overbilling Medicare for service levels that don’t match patient needs creating profit through fraud. Unlike many healthcare providers, a hospice is not paid per number of services performed but rather per patient per day regardless of the number of services provided. It has been reported that some patient needs have been ignored because of this billing practice. The report shows that fewer services are provided to patients over weekends though the patient’s needs had not changed from midweek. Some hospice facilities bill at the highest level of care category for weeks but the service provided might be a mere phone call to the family to check on the patients well being.

Federal reviewers also found out that some hospice providers search for patients who reside in nursing homes or assisted living facilities as these environments provide cover to overbill Medicare for a level of service that was not needed but cost the government program almost four times that of basic, in-home care. The report cites in 2012 Medicare paid $268 million for the more expensive, inpatient hospice care for patients that did not need it. In one of the worst examples of outright fraud, a hospice owner signed up patients who were not terminally ill making them unqualified for hospice care at all. In another case, a new hospice patient did not understand that in signing into the hospice program the patient is waiving their right to Medicare payments for curative treatment. The patient was elderly, lonely and just wanted someone visiting them at home.

Not all hospice facilities ignore patient needs or commit fraud. To the contrary, most operate honestly and tend to patient needs with compassionate care. Hospice care is a gift to family members who cannot, or are not qualified to, care for their dying loved one. It reduces the pain and suffering of the patient and gives them a sense of safety as they approach their end of life. More baby boomers are joining the ranks of the elderly, and a strain will be placed on the sustainability of the hospice system. Oversight, review, and modifications to billing systems and patient care are critical to keeping costs and quality in check.

Education about the hospice world, knowing what to expect as a patient or as a family member of a patient is crucial to the best outcome experience for all involved. Like the hospice system itself, oversight and review of a hospice facility before the need arises in your family system allows for sound decision making at a time in life where calm and caring should be the focus.

If you have questions about anything you’ve read, please don’t hesitate to reach out.

 

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