ENSIGN LAW FIRM NEWSLETTER
December, 2005
At the end of the holiday season and the beginning of a new year, purposeful people pause to review the past year and resolve to make the next one better. They refocus their attention on the things that are important, re-establish their priorities and renew their commitments.
And like you, we are no different. In fact, we have undertaken a refocusing and renewing process that began several months ago. As a result, we have some important announcements to share with you in this newsletter that we are excited about and believe will enhance our service to you and your loved ones.
In addition to these announcements, I'll bring you up-to-date on some important developments in elder law that have occurred since our last newsletter and some troubling developments on the horizon. This is a long letter and I hope you will take time to read it and consider the impact of this information on you and your loved ones, friends, and clients.
Refocusing Our Elder-Centered Practice
In the last year I have been actively seeking ways to enhance the services we offer our clients and to provide even more and better assistance in the future. And in the last few weeks, our quest has come to fruition as I’m about to describe. So our team begins the New Year resolved to provide even more and better services than in the past. These enhanced services will benefit our elder clients and their loved ones who lovingly give such care as their circumstances dictate.
The more our team has served our elder clients, the more we have realized our limitations based upon the typical concept of an elder law firm concept. While providing legal counsel and appropriate documents for our elder clients that have empowered their loved ones to give essential and loving care, we felt inadequately equipped to deal with many of the problems that our clients and their families face that are not purely legal issues. We wanted to cure this inadequacy. To help you better understand our desire, I need to share with you some important background information regarding care for the elderly or “geriatric care.”
Aging, Long-Term Care and Financing
Preparing for future impairment and long-term care is, regrettably, a task that everyone faces as they age. Losses in a person’s ability to function day to day are a natural part of the aging process, and those losses become more severe as people get older. Among elders aged 85 or older, about 55 percent are sufficiently impaired they require long-term care – personal assistance that enables them to perform daily routines such as eating, bathing, and dressing. Such long-term care is usually needed for a long time – in many cases, until they die.
When an elder's needs for long-term care can no longer be met either inside the home or without the intervention of paid providers, the elder enters "the long-term care system." (Sometimes, we call it "the maze.") The elder, and the elder's family, are now embarking on an arduous journey through murky waters. But the current "system" is truly a non-system, a hodgepodge of services that often fails to meet the needs of the elderly and disabled in a variety of long-term care settings. (Most care-providing individuals are not to blame as they are doing their best within the confines of this "system.") Economically inefficient, the "system" fails to assure that high-quality services are provided. The "system" (particularly Medicare) does not fund assisted living and provides home health care in a hodgepodge fashion. The "system" of financing is biased in favor of providing long-term care in an institutional setting, which usually means a nursing home.
Currently, elderly people finance long-term care services from a variety of sources, including private resources such as personal savings, care donated by friends and family, and long-term care insurance and some public programs such as Medicaid and Medicare, with increased reliance on the latter. Lawmakers have tried to implement various policies to help people pay for their long-term care plus some reforms of public programs to control costs and improve effectiveness. But the growing population share of seniors and the very old raise doubts about whether the current financing sources can support increased demand for long-term care. Indeed, as reported later, Congress is currently cutting the Medicaid program.
Acute Healthcare and Elder Law
Most healthcare systems are ill equipped to address the needs of the aging population. Founded on the principles of acute care and dominated by specialization, efficiency, and expediency, they do not address well the chronic healthcare needs of seniors. The acute-care system is focused on curing the patient's immediate illness and fixing patients and reacting to healthcare crises. Yet older patients with chronic illness require continuing care that bridges across traditional medical boundaries and care settings. And the healthcare financing system rewards practitioners who treat patients with acute care needs while generally slighting those who treat patients with chronic illnesses.
Too often traditional elder law practice resembles the U. S. healthcare system. When a long-term care crisis occurs, the typical reaction is to fix the immediate financing problem of paying for the nursing home. This acute-care planning is often called "Medicaid planning" and the focus is on assets and finances to save money from the nursing home. Sadly the client is not the focus – a person who is in need of loving, quality care that maximizes their quality of life – but may be seen merely as a Medicaid eligibility problem for a lawyer to solve.
Even when the client is not in an immediate crisis but afflicted with a chronic, disabling illness such as Alzheimer's disease, elder law attorneys often plan for this client by affirming the client's belief in the inevitability of a nursing home financing crisis and then "fixing" it. Sometimes the goal seems to be to get the client – who may never need Medicaid because she may never need nursing home care – eligible for Medicaid. And many healthy elders are demanding "Medicaid planning" because they have been told that the government or nursing home will take all of their money someday. Some elder law attorneys are happy to oblige.
Three basic flaws exist in the current model of acute health care and acute elder law practice:
1. Neither supports people in the day-to-day self-management of their chronic illnesses.
2. Neither coordinates or advocates for quality care in chronic illness to improve the quality of life of the elder.
3. Neither provides support or alternatives for care other than acute care or nursing home care, or for financing other than public benefits.
Chronic Caregiving
For an estimated 99 million Americans chronic conditions are a fact of life. Of these, 41 million people have their daily activities limited in some way because of their condition, and 12 million are unable to live independently. The prevalence of physical and mental disability among the elderly is growing rapidly along with America's aging population. The number of Americans who will suffer functional disability due to arthritis, stroke, diabetes, coronary artery disease, cancer, or cognitive impairment is expected to increase at least 300 percent by 2049.
How do elders with chronic conditions obtain care and manage their illnesses today? About 85 percent of elders who need long-term care receive it from family and friends; few receive assistance from paid professionals or aides because of quality or financial concerns. Family and friends as caregivers perform complex medical tasks, including medication administration, and errors can result. Caring for a loved one's every need, making life or death decisions, being on call 24/7 and dealing with many unknowns is a demanding and often isolated, thankless job. Such personal caregiving is an unpaid extension of the public health system that gives about $196 billion in loving, personal care annually that is seldom compensated.
Quality chronic care is more difficult to achieve than is most good acute care because of the nature of the illnesses it must deal with and the characteristics of the clients served. Quality chronic care requires continuity over time, multidisciplinary teamwork and boundary-spanning collaborations between medical and non-medical service providers. The keys to successful outcomes in chronic care of the elderly are patient-centered care and appropriate geriatric care management.
Patient-centered care is a partnership among healthcare practitioners, the patients, and their families encompassing qualities of compassion, empathy, and responsiveness to ensure care decisions respect the patient's wants, needs, and preferences. To be successful, patients need education and support in making sound and appropriate decisions so they can participate in their own care. Appropriate geriatric care management knits together this partnership to provide the level and quality of care that will enhance the quality of life of the patient.
What Do Elders Want? What Do Their Families Want?
Many times we have been approached by loving children who tell us that their parent is starting to fade and lose functionality. The only solution they see is to place their parent in a nursing home in an attempt to "save our money" by qualifying for the parent for Medicaid. But is that what their parent really wants – to be in a nursing home and save money for the children? Or is that what the children really want – to see their loved one impoverished and relegated to a nursing home while they put their parent's hard-earned savings into their own bank accounts?
Studies show that most consumers of long-term care want both an opportunity to live as normal and unconstrained a life as possible. They want to be in a situation that will keep them functioning as well as they can, preferably in their own home. Concerns about their quality of life and comfort predominate. Simply stated by an elder, "How do I find, get and pay for good long-term care that helps me stay at home and protects my quality of life?" Often quality long-term care can at least slow the rate of decline in physical, emotional, and social functioning thus improving the quality of life of an elder.
Despite their expressed concerns about saving their money, the families that have come to the Ensign Law Firm, P.C. have generally had as their primary goal the promotion of the good health, safety, and well-being of their loved one, whether she is at home or already in a nursing home. They tell us quite simply, "We want to take care of Mom." They just don't know what to do when they find themselves in the long-term care system. Some things they do know: the system doesn't serve their loved-one's needs and preferences because it is fragmented, confusing, inefficient and financially unsustainable for them. Families want help working their way through the maze.
How Can We Give Clients What They Want? Refocus our Elder Law Practice
In the elder-law practice, some families had questions about the long-term care system they were thrust into that I could not answer: The skilled nursing facility is telling us that Mom needs this therapy and not that one - what does that mean and which one should we choose? How do we talk to the doctor and the therapist about what is wrong with Dad? What are Dad's residential options now that his health has improved but he can't yet return home? How do we take care of Mom during the day while both of us work? My husband has been diagnosed with X, Y and Z – what are the likely outcomes for him? As his wife, what can and should I do for him? Can I take care of him at home? What support services are available to me?
While these are not legal questions, as an elder law attorney who aspires to help my clients as much as possible, I needed better answers than, "I can't help you with those questions ... but I can help you save the money from the nursing home."
I realized that I had to change our elder law practice from just Medicaid planning to holistic planning for the care of our clients through the rest of their lives. I've learned more and more about aging and long-term care and the "elder care continuum," a timeline on which our elder-client is moving toward the end of life. I've realized that the ideal for all of us is to "age in place." That invariably means to the elder-client that he wants to live in his own home, independently and successfully with no assistance needed, until he dies in his sleep in his own bed.
While some people have the good fortune to depart this life in this manner, many clients do not. Rather, they may have Alzheimer's or Parkinson's disease. They may have suffered a disabling stroke, or become frail, or otherwise have found themselves moving down the elder care continuum. They find that they need increasing assistance with their activities of daily living. That means they need to plan for their long-term care needs.
Who can our elder-clients and their loved ones turn to for help in taking care of their loved ones through the rest of their years? The elder law firm that has adapted from the patient-centered healthcare management model "elder-centered planning," the team that focuses on the relationship with our elder-clients and their families, rather than on a series of transactions to attain the specific goal of Medicaid eligibility, which they may never need.
What is Life Care Planning?
What does life care planning mean? It is discovering the elder-client's place on the elder care continuum and then figuring out what we need to do to assist the elder-client and family to identify, access, and pay for quality care for enhanced quality of life of the elder-client, both now and in the future. That is not as easy as it sounds, but for our elder-centered law practice, it is the essence of what we do. Our clients need to get good care when and where they need it. They need to know how to pay for it. They need to be the "informed, activated patient' – the necessary partner with the healthcare community that will make the chronic care system work better for them.
Not many elder law attorneys include, as a part of their services, locating the appropriate type of care, enhancing the accountability of care providers, and advocating with them to ensure the elder-client-patient's right to quality care. But we offer these services now to our clients.
Few elder law attorneys are equipped by virtue of education and experience to ascertain what long-term care is appropriate, know what long-term care services are available in the community, recognize deficiencies in long-term care, bring accountability for quality service, and understand how to advocate for good long-term care. I am not so equipped to do this type of planning by myself. So for our elder law firm to provide such enhanced and extensive long-term care planning, we needed to employ a person who had specialized training and extensive experience in long-term care for the elderly. We call this team member our "Geriatric Care Manager" (GCM) and her name is Bonnie McMillan. More about her in a bit.
What Will Our Geriatric Care Manager Do?
Our Geriatric Care manager is a key member of the chronic care management team for our elder-clients. As an experienced and recognized chronic care giver in Amarillo, she is at home with and well-received by her fellow caregivers in the community of chronic care providers. Through our partnership over the last two years with many caregivers in the Senior Ambassadors Coalition, they recognize our firm has the same goal as they do: to promote the good health, safety, and well-being of their resident or patient who is our elder-client. So when our GCM visits our elder-clients at nursing homes, assisted living facilities, or wherever they happen to be, the facility’s management and staff will know that we are all in the same business: helping our families take care of someone's mother, or father, or spouse, or other loved one. Consequently, if it ever becomes necessary for us to seek accountability to the professional standards of care or to advocate on behalf of an elder-client who may not be getting good care, our Geriatric Care Manager will be able to work with her fellow professionals to assure the best quality of care is provided to our elder-client.
Since her employment, our Geriatric Care Manager, Bonnie McMillan, has been working with some of our existing elder-clients and their families to promote and enhance their quality of life and the quality of care they are entitled to receive from a home health provider or long-term care facility.
For those elder-clients who engage our firm team for Life Care Planning, our Geriatric Care Manager will be readily available to help them and their families with their long-term care concerns though personal assessments, conferences and telephone consultations. The Geriatric Care Manager will function as the point of contact for the family and assist them in accessing and coordinating the services necessary for the family members to take care of their loved one. She will be an important member of the primary caregiver’s support team along with their spouse, siblings and friends.
Soon after we are engaged for a Life Care Plan, the Geriatric Care Manager will conduct a care assessment in the client's home to identify healthcare and related problems and assist in solving them. That might include arranging for in-home domestic or healthcare helpers or other services. Her extensive personal contacts and relationships coupled with knowledge about the costs, quality, and availability of resources in the community enables our Geriatric Care Manager to provide the family with lists of providers of various types. And she can empower them with the information, skills, motivation and confidence to make arrangements for the necessary care for their loved one.
Our Geriatric Care Manager does not directly provide health care, long-term care or companion services to our elder-clients. Rather her role is to educate and empower their family members, especially the primary caregiver, to make such arrangements. Otherwise, we would risk being classified as health care providers and therefore subject to state licensing requirements.
Introducing our Geriatric Care Manager, Bonnie McMillan, R.N.
Bonnie McMillan, BS, RN, CALM, GCM has been a leader in geriatric care in Amarillo for almost two decades. Educated as a teacher and later as a Registered Nurse, Bonnie began her nursing career at High Plains Baptist Hospital for 11 years and continued with the Texas Tech Clinics. Her geriatric care career started when she was employed as the Director of Nurses for Bivins Memorial Nursing Home, long recognized as an outstanding nursing home. She planned, developed, organized and implemented all aspects of nursing for patients in this 120-bed long-term care facility. She supervised, hired, taught and counseled about 100 nursing service employees. Assessing for admission and discharge all residents and their Medicare and Medicaid medical eligibility, as well as coordinating all care plan meetings and optimizing a positive interdisciplinary team approach to patient care, were key responsibilities Bonnie carried out for 12 years at Bivins Memorial Nursing Home.
Before retiring in September, Bonnie spent the last five years as the Clinical Educator for Ware Living Center, Park Place where she taught nursing employees the science and art of geriatric care in an excellent nursing facility. In the last year she also served as the initial Manager for the Herrington Assisted Living Center and attained the Certified Assisted Living Manager designation.
Bonnie came to us with more than these outstanding credentials. She received high accolades from her former colleagues and associates as well as family members of patients she had served in these nursing facilities. More than one nurse – who knew Bonnie well and knew of our search for the ideal Geriatric Care Manager – told me we had found the “best.” Since her employment, Bonnie has proven to be a caring, compassionate, wise and gifted Geriatric Care Manager as we have observed her relationship and interactions with our elder-clients and their family
So Bonnie is well-prepared to assist our elder-clients and their families in their journey through the chronic care system, the maze. She will counsel, teach and coach family caregivers, empowering them with the information, skills, motivation and confidence needed so they provide quality care for their loved ones and thus enhance their quality of life until they pass.
Bonnie has quickly become an integral member of our firm’s caregiving team. As a team, we are blessed with every member of the team and the special skills and talents they contribute: my wife, Joy, as our Paralegal and Business Administrator; Trina as our Public Benefits Specialist and Legal Secretary; and Bonnie as our Geriatric Care Manager.
When we may be of assistance to you, your loved ones, your friends or your clients with Life Care Planning or any aspects thereof such as estate planning and empowerment of children as agents and future caregivers, please contact us. We look forward to working with you.
Congress Slashes Medicaid Eligibility
Unless a miracle happens very soon to halt the juggernaut of budget cuts aimed at the most vulnerable of our citizens, poor children and poor elderly, Congress and President Bush will have seriously impeded the ability of many poor senior citizens to qualify for Medicaid assistance with their essential nursing home care.
The opposition to this slashing of essential public benefits to the poor children and elderly – led by numerous organizations earnestly concerned for their welfare – is on its last legs. The House of Representatives is to hold the final vote on the Budget Reconciliation Act sometime in early January. It is unlikely to change its vote for these cuts.
If passed as expected, the impact of this law will be felt by many potential Medicaid recipients. There will be a “lookback” period of five years instead of three years. Any gift made during that period (calculated from the date of the Medicaid application) and after the effective date of this law will prevent the elder from finally qualifying for Medicaid until the expiration of a penalty period that begins only when they are otherwise qualified for Medicaid – in a nursing home Medicaid bed with medical necessity and less than $2,000 in countable resources and income below the limit. So this impoverished elder will have to find a way to pay for the nursing home care until the penalty period runs out. Changing the beginning of the penalty period from the date of the gift to the date of otherwise being qualified will have devastating effects on many poor elderly who would have otherwise qualified for Medicaid. So traditional “Medicaid Planning” discussed earlier will become far more difficult in the future as gifts to anyone other than the spouse will incur a penalty.
New Numbers for 2006
At the beginning of each year the U.S. Government's Center for Medicare & Medicaid Services updates the eligibility amounts. Here are some of those expected for Texas beginning on January 1.
On the income side of qualification, the maximum "countable" income - the cap - for Medicaid qualification by an individual will increase from $1,737 per month to $1,809. In some circumstances, some or all of the institutionalized spouse's income may be paid to the spouse who is not institutionalized, the "community spouse." This minimum monthly maintenance needs allowance has increased from $2,377.50 per month to $2,488.50.
On the resources side of qualification, some of the resources of the community spouse can be protected for the benefit of that spouse. This is called the protected resource allowance (PRA). The maximum PRA in Texas has increased from $95,100 to $99,540. In some restricted cases, the PRA may be increased (expanded) above this maximum amount if the non-countable resource income of both spouses was below the minimum monthly maintenance needs allowance above. The minimum protected resource amount rises from $19,020 to $19,908.
The average cost of nursing home care rose to $3,549 this fall. This amount is used to determine if gifts are penalized and for how long. The gift penalty has changed to a daily penalty rather than a monthly penalty. So $3,549 results in a penalty of one day for each $117.09 that was gifted.
Continuing Education and Speaking
I spent two days in August preparing for the next tax season at the local CPA Chapter’s Tax Institute. At the final luncheon, I was surprised and humbled to be honored as the Outstanding CPA of the Year by my peers. Another day was spent at the CPA’s Tax Update in December.
In November, Joy, Trina and I learned so much at a very informative Eldercare Workshop entitled Caring for the Long Haul, sponsored by The Area Agency on Aging and the NWTH Senior Advantage Program expertly presented by Dr. Terry Hargrave, PhD, of WTA&MU.
I enjoyed meeting with my colleagues in the Texas Chapter of the National Academy of Elder Law Attorneys to learn more about developments in elder law on both the state and federal level. Also in November, I went to Nashville for the Life Care Planning for the Elderly Client seminar presented by Timothy L. Takacs, the pioneer in this type of elder law practice. I learned so much that answered many questions I had been pondering and moved us toward the refocusing of the firm.
We continue to enjoy our relationship with the Senior Ambassadors Coalition affiliated with the Area Agency on Aging. This fall we assisted the Coalition on a pro bono basis with the incorporation of two non-profit corporations. One will be able to receive tax-deductible charitable contributions and use them for charitable and educational purposes benefiting the seniors of this area. The second will allow the Coalition to undertake social welfare projects and advocate for the rights and benefits of seniors before local, county, state and federal legislative bodies without becoming involved in political activities or support of candidates.
The Area Agency on Aging staff invited me to teach two sessions of their Volunteer Benefits Counselor Training Course. One session was about Advance Directives (the healthcare documents known as the Advance Directive to Physicians, Medical Power of Attorney and Do Not Resuscitate Orders). The second session was about Medicaid in relation to living trusts and Miller trusts and helping elders be aware of and avoid annuity scams and predatory salespersons.
In April, Bonnie and I will present three sessions of the Understanding Geriatric Needs Course II: Advanced Principles of Eldercare at Amarillo College. She will teach Dementia & Alzheimer's Disease and Behavioral Management of Dementia. I will teach Ethical Issues and the Elderly. Bonnie will also teach Abuse of the Elderly in an extended course for social workers. For more information about all the course offerings, live and online, and the other services to seniors and families offered by the outstanding Panhandle Geriatric Education Program that is coordinated by our friend Karen Russell, go to http://sites.actx.edu/~geriatric/index.html
The entire team of the Ensign Law Firm, P.C. wishes you and your loved ones a Happy, Prosperous and Joyous New Year filled with many opportunities to give of yourself to others, beginning at home with family, and receive the untold blessings.