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The Senate Releases its Health Care Bill…Now What?
Oct 12, 2017
We are certainly watching a Civics class in action as the Republicans in the House and Senate work toward a repeal and replacement of the Affordable Care Act
(ObamaCare). The House passed its bill, the American Health Care Act
(AHCA) in May. The Senate is taking the next step with its Better Care Reconciliation Act
, which was introduced on June 22. Senate Majority Leader Mitch McConnell had hoped for a vote before the July 4 recess but postponed it because several Senate Republicans publicly stated they would not vote for it in its present form.
In this issue of The ElderCounselor , we will look at what is in the current Senate bill, how it differs from the House bill, why some are opposed to it, and what the future might hold. But first, let’s revisit why Republicans are trying so hard to repeal and replace ObamaCare and how they are going about it.
Why Repeal and Replace ObamaCare?
ObamaCare, you may remember, was passed by the Democrats in 2010 with no Republican support. Ever since, Republicans have campaigned on repealing and replacing the program, which was unpopular with many Americans. “Repeal and Replace” was their rallying cry to voters to help them win back control of the House in 2012, then the Senate in 2014, and finally the Presidency in 2016. If the Republicans are not able to fulfill this major promise, some may be in danger of losing their seats in the next election, as they would likely be blamed for the problems with ObamaCare if they don’t fix them. These are the political reasons.
The practical reason is that ObamaCare is self-destructing. Premiums continue to rise, deductibles and copays are so high that many cannot afford to use their plans, and insurers, who underestimated costs, are leaving markets. In 2018, many counties across the country will have no plans in the individual marketplace. Democrats admit that ObamaCare has problems and needs a major fix to survive. But they are not on board with repeal and replace of such a signature piece of legislation, and are happy to stay on the sidelines while Republicans try to find a way to pass new legislation on their own.
The Legislative Process
The normal legislative process is that a bill begins in the House, where it is written, discussed and approved by a committee before the House votes on it. If it passes the House, it is then sent to the Senate. The Senate can vote on the same bill, make amendments to the House bill, or create its own bill. Eventually, both the House and Senate must vote on the same bill, so if there are differences, members of both the House and Senate meet in committee to resolve them. Once a bill passes both the House and Senate, it is then sent to the President who can sign it into law or veto it.
As we are witnessing, this can be a messy process. Right now, there is a House bill on health care that has passed the House, and a Senate bill that has not passed the Senate. Discussions and amendments are still occurring with the Senate bill in hopes it will pass soon. The public posture is that this messy legislative process is making the bill better.
Further complicating this process is that while the Republicans have a majority in both the House and the Senate, they only have 52 Republican Senators. 60 votes are required to pass new legislation, so they are attempting to pass health care legislation through the Budget Reconciliation process. It only requires 51 votes, but it limits the legislation to budget-related items only. They would not be able to include provisions some Republicans want in a full repeal and replace bill—for example, letting insurance companies sell across state lines to increase competition, lower prices and create better plans; and allowing the government to negotiate lower drug prices. Issues like these would have to be voted on later.
For the Senate bill to pass in Reconciliation, 50 Republicans must vote for the bill, since no Democrat or Independent is expected to vote for the bill. Vice-President Pence would break the tie if needed.
How Do the Current Senate Bill and the House Bill Compare?
There are broad similarities in both bills, including the repeal of some major parts of ObamaCare, but neither is a full repeal and replace. Senate Majority Leader McConnell calls the Senate bill a “discussion draft,” as they work to get the needed Senators on board. Let’s look at how the House bill and the current Senate bill compare.
Both Bills Repeal Mandates and Most ObamaCare Taxes
Both bills call for the elimination of 1) the individual mandate that required every person to have health insurance or pay a fine and 2) the employer mandate that forces employers with at least 50 employees to provide healthcare coverage. Most of the tax increases that were imposed to pay for ObamaCare programs are also eliminated, including taxes on net investment income, insurers, drug makers and medical device manufacturers. The Senate bill keeps the “Cadillac tax” on expensive employer insurance plans, though it would be delayed until 2026.
Changes to Medicaid
Medicaid is an entitlement program that provides health care to low-income Americans, the disabled and impoverished children. ObamaCare allowed states to expand Medicaid to some low-income Americans above the poverty level, which greatly increased the number of people on Medicaid. In addition, funding for the Medicaid program is currently “open-ended,” meaning funding increases as need increases.
The problem is that these make Medicaid unsustainable. The goal for Medicaid reform in both the House and Senate bills is to rein in the Medicaid program, preserve it for those who really need it, put it on a fiscally sustainable path and reduce its future spending so that it grows more slowly. Reports of Medicaid funding cuts actually refer to reductions in future Medicaid spending. The House bill would slow the growth of Medicaid funding by $834 billion over 10 years; the Senate bill has a similar growth reduction.
Both bills roll back Medicaid expansion, but the Senate bill would do that more slowly than the House bill. The House bill ended extra federal funds for Medicaid expansion in 2020. The Senate bill begins phasing out these enhanced funds starting in 2021 and restores it to pre-ObamaCare levels by 2024.
Both bills would end “open-ended benefits,” instead of providing the states a set amount of money for each person enrolled. This could be either a per capita cap (a certain number of dollars per person) or a block grant of funds (which each state can use however it wishes). While both bills tie the caps to a rate of inflation, the Senate bill uses a lower rate of inflation than the House bill.
In light of these funding changes, states would probably put some limitations on benefits. They would also be allowed to add a work requirement for able-bodied (non-elderly, non-disabled, non-pregnant) Medicaid recipients. Also, under the Senate bill, some of the currently mandated benefits under Medicaid would be made optional.
Premiums and Premium Assistance for Older/Younger Americans
Under ObamaCare, older Americans could only be charged three times more for their insurance premiums than younger people. While that was helpful for older Americans, younger people were subsidizing them by paying more than their actual costs. Because their insurance costs were high, many young people opted not to buy insurance—causing insurers to lose money and eventually pull out of markets.
Both the Senate and House bills would allow insurance companies to charge older people up to five times more than younger people, more accurately reflecting the actual costs of their health care coverage. The Senate bill offers more help to older people who can’t afford insurance while making coverage cheaper for young healthy people, and it hopes to encourage people to voluntarily buy a policy by offering them tax credits to help pay premiums.
Currently, premium assistance (ObamaCare subsidies) is available to those with earnings up to 400% of the poverty level ($48,240). The Senate bill would limit premium assistance to those earning up to 350% of the poverty level ($42,210) through tax credits based on age, income, and geography. The House bill bases tax credits mostly on age.
Under both bills, young adults under age 26 can continue to get insurance through a parent’s plan or they can buy it independently.
Abortion/Planned Parenthood
Both bills ban the use of any federal funds for any health care plan that covers abortion, except in the cases of rape, incest or where the pregnancy puts the mother’s life in danger. They would also defund Planned Parenthood for one year.
Pre-Existing Conditions
Under ObamaCare, insurers were required to cover people with pre-existing conditions with no increase in cost. Under the House plan, states can receive a waiver that would let insurers charge more for some pre-existing conditions but federal money would be available to help those with expensive policies or conditions. Under the Senate plan, insurers are required to cover people with pre-existing conditions without charging them higher rates.
Continuous Coverage
The original Senate bill had dropped the ObamaCare penalty on those who do not have insurance. Experts had warned that canceling the fine would lead to a sicker pool of people with insurance because young and healthy people would not face consequences for failing to purchase insurance. The Senate bill now imposes a six-month waiting period for anyone who lets their health insurance lapse for over 63 days and then wants to re-enroll in a plan in the individual market. The House bill includes a provision also aimed at those who let their insurance lapse for more than 63 days, allowing insurers to charge a 30% penalty over their premium for one year.
Opioid Addiction
$2 billion has been allocated for fighting opioid addiction and helping states with treatment and response. About 30% of all opioid treatment goes through the Medicaid program, and moderates were worried that people would not be able to get treatment for their substance abuse problems. As part of the negotiations, Senator McConnell added an immediate benefit for opioid addiction.
Congressional Budget Office (CBO) Scoring
The CBO report found that, under the Senate bill, 22 million more people would be uninsured by 2026, compared to 23 million more under the House bill. Next year, 15 million more people would be uninsured under the Senate’s measure because Obamacare’s individual mandate that forces a penalty on the uninsured would be eliminated—allowing people who do not want to buy insurance to be able to drop out of the market with no penalty. By 2026, the CBO projects there would be 15 million fewer Medicaid enrollees.
In addition, average premiums for single individuals would rise by 20% in 2018 and 10% in 2019. In 2020, average premiums for single people would be about 30 percent lower than under current law. By 2026, the analysis projects such premiums will be 20 percent lower than under Obamacare.
The Senate bill would also reduce the federal deficit over the next 10 years by $321 billion. The largest savings would stem from cuts in Medicaid spending.
It should be noted that CBO predictions are just that: predictions. They can, and have been, wrong in the past and should not be relied upon as a factual basis.
What’s Next?
As many as ten Senators have said they cannot vote for the current bill. A new Senate bill is expected in the next few days and a vote could come as early as mid-July.
Senate Majority Leader McConnell and his staff are trying to find a balance between conservative Republicans, who want a full repeal of ObamaCare and a replacement that has lower health care costs, and more moderate Republicans who want to preserve its more popular benefits. The Congressional Budget Office is reviewing legislative language, the Senate parliamentarian is reviewing processes, and Republican Senators are still submitting and discussing options that could get them to the 50 votes they need.
The deal-making process is in full swing, with the additions of opioid funding and allowing health savings accounts to be used to pay for insurance premiums. Some Senators are for potentially leaving in some taxes to pay for more generous benefits, after weeks of being criticized by Democrats for offering “tax cuts for the rich and Medicaid cuts for the poor.” Conservatives want to cut more from the regulations and many from Medicaid expansion states are uneasy about future cuts to Medicaid.
Senator Ted Cruz of Texas has offered an amendment called the “Consumer Freedom Option” that would allow insurance companies to sell any health coverage plan they wish as long as they provide one plan that satisfies the “essential benefits” mandates of Obamacare. While the Cruz amendment appeals to conservatives who want to provide consumers with lower cost options, moderates are concerned it could negatively impact those with pre-existing conditions. Supporters have suggested that federal subsidies could help ensure that premiums don’t increase for those who are seriously ill. The CBO is currently scoring this amendment.
President Trump, along with Senator Rand Paul of Kentucky and Senator Ben Sasse of Nebraska, has even offered to repeal ObamaCare now and replacing it later.
Of course, no one is going to get everything they want so there must be compromises. Majority Leader McConnell has said that if the Senate is not able to pass a bill soon, Congress will have to pass a bipartisan measure to shore up the imploding health insurance markets.
And so, the Civics lesson continues. The process is at work. And we at ElderCounsel will be watching every minute so we can keep you informed.
Stay tuned.
To comply with the U.S. Treasury regulations, we must inform you that (i) any U.S. federal tax advice contained in this newsletter was not intended or written to be used, and cannot be used, by any person for the purpose of avoiding U.S. federal tax penalties that may be imposed on such person and (ii) each taxpayer should seek advice from their tax advisor based on the taxpayer's particular circumstances.
In this issue of The ElderCounselor , we will look at what is in the current Senate bill, how it differs from the House bill, why some are opposed to it, and what the future might hold. But first, let’s revisit why Republicans are trying so hard to repeal and replace ObamaCare and how they are going about it.
Why Repeal and Replace ObamaCare?
ObamaCare, you may remember, was passed by the Democrats in 2010 with no Republican support. Ever since, Republicans have campaigned on repealing and replacing the program, which was unpopular with many Americans. “Repeal and Replace” was their rallying cry to voters to help them win back control of the House in 2012, then the Senate in 2014, and finally the Presidency in 2016. If the Republicans are not able to fulfill this major promise, some may be in danger of losing their seats in the next election, as they would likely be blamed for the problems with ObamaCare if they don’t fix them. These are the political reasons.
The practical reason is that ObamaCare is self-destructing. Premiums continue to rise, deductibles and copays are so high that many cannot afford to use their plans, and insurers, who underestimated costs, are leaving markets. In 2018, many counties across the country will have no plans in the individual marketplace. Democrats admit that ObamaCare has problems and needs a major fix to survive. But they are not on board with repeal and replace of such a signature piece of legislation, and are happy to stay on the sidelines while Republicans try to find a way to pass new legislation on their own.
The Legislative Process
The normal legislative process is that a bill begins in the House, where it is written, discussed and approved by a committee before the House votes on it. If it passes the House, it is then sent to the Senate. The Senate can vote on the same bill, make amendments to the House bill, or create its own bill. Eventually, both the House and Senate must vote on the same bill, so if there are differences, members of both the House and Senate meet in committee to resolve them. Once a bill passes both the House and Senate, it is then sent to the President who can sign it into law or veto it.
As we are witnessing, this can be a messy process. Right now, there is a House bill on health care that has passed the House, and a Senate bill that has not passed the Senate. Discussions and amendments are still occurring with the Senate bill in hopes it will pass soon. The public posture is that this messy legislative process is making the bill better.
Further complicating this process is that while the Republicans have a majority in both the House and the Senate, they only have 52 Republican Senators. 60 votes are required to pass new legislation, so they are attempting to pass health care legislation through the Budget Reconciliation process. It only requires 51 votes, but it limits the legislation to budget-related items only. They would not be able to include provisions some Republicans want in a full repeal and replace bill—for example, letting insurance companies sell across state lines to increase competition, lower prices and create better plans; and allowing the government to negotiate lower drug prices. Issues like these would have to be voted on later.
For the Senate bill to pass in Reconciliation, 50 Republicans must vote for the bill, since no Democrat or Independent is expected to vote for the bill. Vice-President Pence would break the tie if needed.
How Do the Current Senate Bill and the House Bill Compare?
There are broad similarities in both bills, including the repeal of some major parts of ObamaCare, but neither is a full repeal and replace. Senate Majority Leader McConnell calls the Senate bill a “discussion draft,” as they work to get the needed Senators on board. Let’s look at how the House bill and the current Senate bill compare.
Both Bills Repeal Mandates and Most ObamaCare Taxes
Both bills call for the elimination of 1) the individual mandate that required every person to have health insurance or pay a fine and 2) the employer mandate that forces employers with at least 50 employees to provide healthcare coverage. Most of the tax increases that were imposed to pay for ObamaCare programs are also eliminated, including taxes on net investment income, insurers, drug makers and medical device manufacturers. The Senate bill keeps the “Cadillac tax” on expensive employer insurance plans, though it would be delayed until 2026.
Changes to Medicaid
Medicaid is an entitlement program that provides health care to low-income Americans, the disabled and impoverished children. ObamaCare allowed states to expand Medicaid to some low-income Americans above the poverty level, which greatly increased the number of people on Medicaid. In addition, funding for the Medicaid program is currently “open-ended,” meaning funding increases as need increases.
The problem is that these make Medicaid unsustainable. The goal for Medicaid reform in both the House and Senate bills is to rein in the Medicaid program, preserve it for those who really need it, put it on a fiscally sustainable path and reduce its future spending so that it grows more slowly. Reports of Medicaid funding cuts actually refer to reductions in future Medicaid spending. The House bill would slow the growth of Medicaid funding by $834 billion over 10 years; the Senate bill has a similar growth reduction.
Both bills roll back Medicaid expansion, but the Senate bill would do that more slowly than the House bill. The House bill ended extra federal funds for Medicaid expansion in 2020. The Senate bill begins phasing out these enhanced funds starting in 2021 and restores it to pre-ObamaCare levels by 2024.
Both bills would end “open-ended benefits,” instead of providing the states a set amount of money for each person enrolled. This could be either a per capita cap (a certain number of dollars per person) or a block grant of funds (which each state can use however it wishes). While both bills tie the caps to a rate of inflation, the Senate bill uses a lower rate of inflation than the House bill.
In light of these funding changes, states would probably put some limitations on benefits. They would also be allowed to add a work requirement for able-bodied (non-elderly, non-disabled, non-pregnant) Medicaid recipients. Also, under the Senate bill, some of the currently mandated benefits under Medicaid would be made optional.
Premiums and Premium Assistance for Older/Younger Americans
Under ObamaCare, older Americans could only be charged three times more for their insurance premiums than younger people. While that was helpful for older Americans, younger people were subsidizing them by paying more than their actual costs. Because their insurance costs were high, many young people opted not to buy insurance—causing insurers to lose money and eventually pull out of markets.
Both the Senate and House bills would allow insurance companies to charge older people up to five times more than younger people, more accurately reflecting the actual costs of their health care coverage. The Senate bill offers more help to older people who can’t afford insurance while making coverage cheaper for young healthy people, and it hopes to encourage people to voluntarily buy a policy by offering them tax credits to help pay premiums.
Currently, premium assistance (ObamaCare subsidies) is available to those with earnings up to 400% of the poverty level ($48,240). The Senate bill would limit premium assistance to those earning up to 350% of the poverty level ($42,210) through tax credits based on age, income, and geography. The House bill bases tax credits mostly on age.
Under both bills, young adults under age 26 can continue to get insurance through a parent’s plan or they can buy it independently.
Abortion/Planned Parenthood
Both bills ban the use of any federal funds for any health care plan that covers abortion, except in the cases of rape, incest or where the pregnancy puts the mother’s life in danger. They would also defund Planned Parenthood for one year.
Pre-Existing Conditions
Under ObamaCare, insurers were required to cover people with pre-existing conditions with no increase in cost. Under the House plan, states can receive a waiver that would let insurers charge more for some pre-existing conditions but federal money would be available to help those with expensive policies or conditions. Under the Senate plan, insurers are required to cover people with pre-existing conditions without charging them higher rates.
Continuous Coverage
The original Senate bill had dropped the ObamaCare penalty on those who do not have insurance. Experts had warned that canceling the fine would lead to a sicker pool of people with insurance because young and healthy people would not face consequences for failing to purchase insurance. The Senate bill now imposes a six-month waiting period for anyone who lets their health insurance lapse for over 63 days and then wants to re-enroll in a plan in the individual market. The House bill includes a provision also aimed at those who let their insurance lapse for more than 63 days, allowing insurers to charge a 30% penalty over their premium for one year.
Opioid Addiction
$2 billion has been allocated for fighting opioid addiction and helping states with treatment and response. About 30% of all opioid treatment goes through the Medicaid program, and moderates were worried that people would not be able to get treatment for their substance abuse problems. As part of the negotiations, Senator McConnell added an immediate benefit for opioid addiction.
Congressional Budget Office (CBO) Scoring
The CBO report found that, under the Senate bill, 22 million more people would be uninsured by 2026, compared to 23 million more under the House bill. Next year, 15 million more people would be uninsured under the Senate’s measure because Obamacare’s individual mandate that forces a penalty on the uninsured would be eliminated—allowing people who do not want to buy insurance to be able to drop out of the market with no penalty. By 2026, the CBO projects there would be 15 million fewer Medicaid enrollees.
In addition, average premiums for single individuals would rise by 20% in 2018 and 10% in 2019. In 2020, average premiums for single people would be about 30 percent lower than under current law. By 2026, the analysis projects such premiums will be 20 percent lower than under Obamacare.
The Senate bill would also reduce the federal deficit over the next 10 years by $321 billion. The largest savings would stem from cuts in Medicaid spending.
It should be noted that CBO predictions are just that: predictions. They can, and have been, wrong in the past and should not be relied upon as a factual basis.
What’s Next?
As many as ten Senators have said they cannot vote for the current bill. A new Senate bill is expected in the next few days and a vote could come as early as mid-July.
Senate Majority Leader McConnell and his staff are trying to find a balance between conservative Republicans, who want a full repeal of ObamaCare and a replacement that has lower health care costs, and more moderate Republicans who want to preserve its more popular benefits. The Congressional Budget Office is reviewing legislative language, the Senate parliamentarian is reviewing processes, and Republican Senators are still submitting and discussing options that could get them to the 50 votes they need.
The deal-making process is in full swing, with the additions of opioid funding and allowing health savings accounts to be used to pay for insurance premiums. Some Senators are for potentially leaving in some taxes to pay for more generous benefits, after weeks of being criticized by Democrats for offering “tax cuts for the rich and Medicaid cuts for the poor.” Conservatives want to cut more from the regulations and many from Medicaid expansion states are uneasy about future cuts to Medicaid.
Senator Ted Cruz of Texas has offered an amendment called the “Consumer Freedom Option” that would allow insurance companies to sell any health coverage plan they wish as long as they provide one plan that satisfies the “essential benefits” mandates of Obamacare. While the Cruz amendment appeals to conservatives who want to provide consumers with lower cost options, moderates are concerned it could negatively impact those with pre-existing conditions. Supporters have suggested that federal subsidies could help ensure that premiums don’t increase for those who are seriously ill. The CBO is currently scoring this amendment.
President Trump, along with Senator Rand Paul of Kentucky and Senator Ben Sasse of Nebraska, has even offered to repeal ObamaCare now and replacing it later.
Of course, no one is going to get everything they want so there must be compromises. Majority Leader McConnell has said that if the Senate is not able to pass a bill soon, Congress will have to pass a bipartisan measure to shore up the imploding health insurance markets.
And so, the Civics lesson continues. The process is at work. And we at ElderCounsel will be watching every minute so we can keep you informed.
Stay tuned.
To comply with the U.S. Treasury regulations, we must inform you that (i) any U.S. federal tax advice contained in this newsletter was not intended or written to be used, and cannot be used, by any person for the purpose of avoiding U.S. federal tax penalties that may be imposed on such person and (ii) each taxpayer should seek advice from their tax advisor based on the taxpayer's particular circumstances.
A common question I receive in my office is what will happen to my home when I pass away if I die in a nursing home? For Florida residents the answer is quite different than other states. In Florida if you pass away and your home is being left to your family then it is protected by our homestead laws. This is true whether it enters probate or not. Some would argue that going through probate is a more secure way to protect it because it would have an order declaring it as homestead where if it passed to the family through a trust there wouldn’t be an order. As most know I am not a fan of entering into a trust document when there is only homestead property; however, to be clear your home is protected so long as the family meets the definition of family. This begs the question who is my family? The Florida Supreme Court has defined “heirs” in relation to homestead protection as “any family member within the class of persons categorized the Florida intestacy statute.” So, if you are like me then that answered absolutely nothing as it does not address a decedent’s deceased spouse’s family who in many cases closer to be related than others within the statute. Since that opinion by the Supreme Court there have been subsequent cases which have tackled the issue of children of a decedent’s deceased spouse and found they can fall within the protected class. Does that mean children from another marriage have a right to claim an interest in an estate? No, if there isn’t a Will devising the property to those individuals they will not take under the law of intestacy which is the law followed when one does not have a Will. If you are reading this and concerned about your homestead, what action should you take? Well it depends (you have to love lawyers). You may consider altering your deed to name a beneficiary, or you may simply revisit your will to confirm that you didn’t put a charity in a place where they might receive the homestead. There are many things you might do depending on your circumstances. What I will caution you against doing is transferring an interest in your home to your children or others. Our firm has seen a pattern where parents transfer their home to their children but reserve a life estate. This is a very dangerous planning method for the vast majority of people in Florida. My reason(s) for saying this are so long they justify their own blog posting; for now just trust this is a bad technique, which has been abandoned by most attorneys for decades but still is followed by people who dabble in this type of work. In the end the Medicaid recovery act is real, and there are families which may lose their homestead protection. However, those individuals were the ones who did not seek help with their estate plan. Florida protects homestead so long as you intend to leave your home to your family. If you have further questions regarding this post please let us know.
The following has been taken from several recent article s and announcements sent to facilities th roughout the country. This summarized version hopefully will provide some understanding of wh at to expect w hen visiting. Plea se keep in mind facilities are bound by their license to follow these guidelines. Everyone is attempting to protect the residents and staff. Patience and understanding by all is going to be necessary. The Centers for Medicare & Medicaid Services (CMS) is taking action to protect the health and safety of our nation’s patients and providers in the wake of the 2019 Novel Coronavirus (COVID-19) outbreak. According to the latest data from the Centers for Disease Control and Prevention (CDC), seniors are at the greatest risk of serious illness due to COVID-19, which is why CMS is providing valuable information to providers who interact with patients in the hospice setting. To protect these vulnerable patients, CMS is amplifying its current health and safety requirements by delivering detailed guidance on the screening, treatment and transfer procedures healthcare workers must follow when interacting with patients to prevent the spread of COVID-19. CMS is also issuing additional guidance specific to nursing homes to help control and prevent the spread of the virus. Limiting visitors and individuals: Expanded recommendations: CMS is providing the following expanded guidance to prevent the spread of COVID-19 (in addition to the information above about restricting visitors). • Restricting means the individual should not be allowed in the facility at all, until they no longer meet the criteria above. • Limiting means the individual should not be allowed to come into the facility, except for certain situations, such as end-of-life situations or when a visitor is essential for the resident’s emotional well-being and care. • Discouraging means that the facility allows normal visitation practices (except for those individuals meeting the restricted criteria), however the facility advises individuals to defer visitation until further notice (through signage, calls, etc.). 1. Limiting or Discouraging visitation: a) Limiting: For facilities that are in counties, or counties adjacent to other counties where a COVID-19 case has occurred, we recommend limiting visitation (except in certain situations as indicated above). For example, a daughter who visits her mother every Monday, would cease these visits, and limit her visits to only those situations when her mom has a significant issue. Also, during the visit, the daughter would limit her contact with her mother and only meet with her in her room or a place the facility has specifically dedicated for visits. b) Discouraging: For all other facilities (nationwide) not in those counties referenced above, we recommend discouraging visitation (except in certain situations). See below for methods to discourage visitation. Also see CDC guidance to “stay at home” https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-riskcomplications.html#stay-home. 2. Affirmative action Facilities should take: a) Increase visible signage at entrances/exist, offer temperature checks, increase availability to hand sanitizer, offer PPE for individuals entering the facility (if supply allows). b) Also, provide instruction, before visitors enter the facility and residents’ rooms, on hand hygiene, limiting surfaces touched, and use of PPE according to current facility policy while in the resident’s room. c) Individuals with fevers, other symptoms of COVID-19, or unable to demonstrate proper use of infection control techniques should be restricted from entry. d) Signage should also include language to discourage visits, such as recommending visitors defer their visit for another time or for a certain situation as mentioned above. 3. In addition to the screening visitors for the criteria for restricting access (above), facilities should ask visitors if: • they took any recent trips (within the last 14 days) on cruise ships or participated in other settings where crowds are confined to a common location. • If so, facilities should suggest deferring their visit to a later date. If the visitor’s entry is necessary, they should use PPE while onsite. • If the facility does not have PPE, the facility should restrict the individual’s visit, and ask them to come back at a later date (e.g., after a 14 days with no symptoms of COVID-19). 4. In cases when visitation is allowable, facilities should instruct visitors to limit their movement within the facility to the resident’s room (e.g., reduce walking the halls, avoid going to dining room, etc.) 5. Facilities should review and revise how they interact with volunteers, vendors and receiving supplies, agency staff, EMS personnel and equipment, transportation providers (e.g., when taking residents to offsite appointments, etc.), other practitioners (e.g., hospice workers, specialists, physical therapy, etc.), and take necessary actions to prevent any potential transmission. For example, do not have supply vendors transport supplies inside the facility. Have them dropped off at a dedicated location (e.g., loading dock). Facilities can allow entry of these visitors as long as they are following the appropriate CDC guidelines for Transmission-Based Precautions. For example, hospice workers can enter a facility when using PPE properly. 6. In lieu of visits (either through limiting or discouraging), facilities can consider: a) Offering alternative means of communication for people who would otherwise visit, such as virtual communications (phone, video-communication, etc.). b) Creating/increasing listserv communication to update families, such as advising to not visit. c) Assigning staff as primary contact to families for inbound calls, and conduct regular outbound calls to keep families up to date. d) Offering a phone line with a voice recording updated at set times (e.g., daily) with the facility’s general operating status, such as when it is safe to resume visits. 7. When visitation is necessary or allowable, facilities should make efforts to allow for safe visitation for residents and loved ones. For example: a) Suggest limiting physical contact with residents and others while in the facility. For example, practice social distances with no hand-shaking or hugging, and remaining six feet apart. b) If possible (e.g., pending design of building), creating dedicated visiting areas (e.g., “clean rooms”) near the entrance to the facility where residents can meet with visitors in a sanitized environment. Facilities should disinfect rooms after each resident-visitor meeting. c) Residents still have the right to access the Ombudsman program. If in-person access is allowable, use the guidance mentioned above. If in-person access is not available due to infection control concerns, facilities need to facilitate resident communication (by phone or other format) with the Ombudsman program or any other entity listed in 42 CFR § 483.10(f)(4)(i). 8. Visitor reporting: a) Advise exposed visitors (e.g., contact with COVID-19 resident prior to admission) to monitor for signs and symptoms of respiratory infection for at least 14 days after last known exposure and if ill to self-isolate at home and contact their healthcare provider. b) Advise visitors to report to the facility any signs and symptoms of COVID-19 or acute illness within 14 days after visiting the facility. For more information you may visit the following: https://www.cms.gov/newsroom/press-releases/cms-issues-clear-actionable-guidance-providers-about-covid-19-virus https://www.cms.gov/files/document/qso-20-14-nh-revised.pdf https://www.ahcancal.org/facility_operations/disaster_planning/Documents/SNF-Guidance-Preventing-COVID19.pdf
Many people make an incorrect assumption that I know more than I actually do know. When out socially, it is not uncommon for someone to ask me about a contract they are signing or for a relative to call and ask if they have a case against a neighbor. Even after years of explaining my expertise is in Elder Law, I continue to get these questions. I have explained I am on top of my field with Elder Law but that does not mean I am on top of the overall legal profession (only a fool would ever considering himself or herself there). Many know I served on the Florida Bar’s Grievance committee for three years. There we would hear complaints about other attorneys and determine if there was probable cause for the Bar to proceed further against them. We would often hear an attorney say something along the lines of I thought something was better than nothing. A statement which is wrong far more than it is right. In the end the attorney should have never accepted the case and their license was now at risk for attempting to give the “something.” This isn’t simply an attorney issue. I see many people coming into my office and show me documents they have “helped” their love ones create. I have extremely educated individuals come in and show me (somewhat proudly) that they went online and purchased an estate plan. What these people often learn during a meeting with me is the quick and easy document may work to open a bank account; however, for someone in retirement who has a progressive illness those documents fall well short of what is needed once we start working with the Federal Government, Pension companies, the IRS, and the like. An all too common issue we see is with a poorly drafted Durable Power of Attorney (DPOA). People will slide it across the table and even before opening it I know it will not cover irrevocable trust planning which will be necessary even if the person is completely broke but has $2,349.01 in gross income each month and needs Medicaid. These DPOAs come from online sources; however, too often they come from attorneys who thought they were doing a favor for a friend (often under the assumption it is only a form right). Without a properly worded DPOA the fees often double well into the thousands. All is avoided in the majority of cases for a few hundred. Proving the old adage an ounce of prevention is better than a pound of cure. I could continue with this right into other areas of my practice such as using financial advisors to do public benefits planning, which is something the Florida Supreme Court has ruled the unlicensed practice of law in the case (SC14-211); however, if you are reading this I know you are smart enough to know the limits of what you should attempt on your own. Let us just hope other professionals can follow our lead. Until next time if you have a question about your estate or retirement plans and would like to discuss it with me please know we are accepting new clients. Be good to your family.
From time to time I receive the question “what can I do to protect my parent from themselves”. In situations such as this, the parent often is suffering from a dementia related illness, and while still competent for the most part is making snap decisions they would have previously never made. The adult child doesn’t want to file for Guardianship because of the direct challenge to the parent’s competency and high cost. At the same time, the child does not want Dad to go buy a new $60,000 SUV either. There are several steps I can recommend in this situation to protect a loved one from making poor decisions. 1. First a good Durable Power of Attorney (DPOA) is the cornerstone of a solid plan. What do I mean when I say “good”? One that is drafted by an attorney who works with people in your loved ones situation. This document while simple in appearance is actually very complex in the state of Florida. In 2011, the Florida Legislature enacted a new DPOA statue with specific requirements on what language should be included within a DPOA. The vast majority of online documents lack this information. Further, many general practitioners or non-elder and estate attorneys are unaware of the change in the law. Spend the extra few hundred dollars to obtain a Durable Power of Attorney that will work when the time comes. Otherwise, you may find yourself spending thousands to protect your loved one. 2. Establish an online account presence with their accounts. Many parents do not have online access to their accounts. With many children living in other areas from their parents, purchases can go unnoticed. Parents often have a feeling the decision they made was a poor one and will not mention it on calls. If you are monitoring purchases you can often catch where scams or poor decisions are being made. Of course you need to have your parents’ consent to access their account, which is why step-one was a DPOA. 3. If parents show signs of making large transactions on credit, place barriers between them and credit. Cancel credit cards or reduce balance to small amounts that if lost would not hurt the overall estate. Additionally, credit reporting agencies have the ability to freeze people’s credit. Equifax has just such a service and the link provided takes you to the sight where they walk you through the process. If the parent can’t obtain new credit, then spur of the moment decisions can’t be made. 4. Still, freezing ones’ credit does little for parents who are a little too trusting of people. It is common to see many seniors succumb to various scams by people who on the surface seem trustworthy. These people can be in social organizations, churches, or just strangers online or calling their home. Protection from these individuals can be extremely difficult. Our office has walked into cases from people who have deeded their home to a church, agreed to send large and small sums of money to fake charities, as well as many, many overseas internet scams. For many of these parents the issue is one of control. They do not want to have someone remove control of their accounts. Ironically, the more one pushes to help the more they may reach out to unscrupulous individuals. When we meet with clients we remind them that a family member acting through a Power of Attorney is not taking control. They are called an Agent because they work with and for the person signing the document. For these issues a conversation with a qualified attorney could help. If you have ever noticed law firm signs that say attorney and counselor at law then you will appreciate that Elder Law attorneys really are more on the counselor end of that spectrum. They understand the fears and anxiety that many feel and can help people understand what is being granted and what is not. 5. If the loved one’s sole asset is Social Security then you can become the representative payee Agent through the social security process. This will allow you to receive the Social Security check. You will become the fiduciary for the individual, which means you are liable for using the money for their care (you are as an Agent through a DPOA also). For more information you can visit Social Security . If at the end nothing seems to be working to stop the parent and they either will not allow you to help or lack the capacity to give you the authority to help you may be forced to obtain a Guardianship. Working with an attorney whose practice handles Guardianships on a daily basis is key. Attorneys who practice criminal law, family law and Guardianships are likely going to lack the specific knowledge of techniques and services to make the process as respectful as possible. While strong advocacy is important in a litigation attorney, Guardianship is a mix bag of social work, legal knowledge, and advocacy. I handled contested and uncontested guardianships for 15 years (I stopped accepting new cases several years ago). I was always shocked at how litigation attorneys could seemingly divide a family while going through the process. It is not necessary. Work with the right attorney and you increase your odds of making it through without losing relationships. Still the best policy is to plan prior to a problem arising. We can accomplish far more working together while everyone is competent and can explain their goals and desires. There is no cookie cutter way to plan estates. My office seeks to help families find the right plan for their unique situation.
“Who will manage my estate when I am gone?” is a common concern for many. I can see the concern in my clients eyes as they say that they trust their child but worry over their in-laws influence. Others will tell me they love their children but simply cannot trust them with their estate. There are many reasons people will set up a trust to resolve their estate. For those individuals, many are finding comfort with the fact they can appoint an individual or group of individuals to act as a protector of their original intent. A trust protector is simply a person or a group of people who follow a trust after a certain event (often the death or incapacity of the person who established the Trust). The powers vary as to what a trust protector may do. However, a general list would be audit the accounting, remove and name another trustee (rarely themselves), amend language to provide better tax protections, etc. The goal is to create a little check and balance within the trust to help insure the wishes are followed out. Of course there are limits to the Trust Protector. First and foremost they should be acting as a fiduciary; meaning they are not acting in their own personal interest but in the interest of the trust. They likewise can’t remove a professional trustee and name their spouse as trustee. They can’t modify who is a named beneficiary (absent special circumstances such as the beneficiary becomes disabled and the funds would be better protected in another type of trust). Most trust protectors are compensated in some form or fashion; however, their work shouldn’t be an ongoing matter. Further, many trust protectors are family and do not care about compensation. Generally the cost of a trust protector is low. The drafting attorney should be able to estimate what they would anticipate the cost to be, if any, on an annual basis. You are likely wondering who acts as a trust protector? There is no simple answer to this question; however, often if the trust names a corporate trustee then the beneficiaries might serve as a trust protector. Many people will name their CPA firm as a Trust protector along with a beneficiary or two. On rare occasions people will name their attorney to this role. However, this normally will only occur when they require help with a specific part of their estate. The ongoing cost for an attorney to serve in this role traditionally make it impractical. In the end a properly drafted trust can benefit from a trust protector when there is some uncertainty surrounding the trustee being appointed, the potential actions taken by beneficiaries, complex tax and public benefits being sought by heirs or family disagreements which may make administration difficult for the trustee. If you have a trust and believe your trust could benefit from a trust protector then you should schedule time to discuss this important matter with your attorney. If you are in the Pensacola region and would like to discuss the matter further with me, feel free to reach out as we are accepting new clients.
A common situation we find ourselves in is who to leave our estate to if there was a common accident. Take a recent client who came into our office. She has one daughter and no grandchildren. Her daughter is 55 years old, therefore, is not planning to start a family. The client explains that her siblings are financially stable and elderly themselves so she wouldn’t want to leave them her estate if her daughter passed prior to her or with her. She likewise doesn’t want to leave the funds to her friends. I then start asking questions such as what are you passionate about? What groups help you, inspire you, or make you feel more hopeful for a better tomorrow? From time to time, clients will provide the name of a group I haven’t heard of, or worse yet, a group I have heard of but with a slightly different name. Red flags go up immediately and I go into protector mode. I know that scams on retirees is a 30+ billion dollar a year problem (yes that is a “b”) in the United States. Personally, I believe the problem is much worse as many seniors are afraid to report the scam out of fear their family will believe they are incapable of managing their affairs (back way to judge incapacity, by the way, but that is another topic). Therefore, when I hear of something I am unfamiliar with I go into action to research the group. How can you better protect yourself and those you care about? A common method for debunking myths is to go to the website www.snopes.com . This is a site I forward to my mother on a nearly monthly (and during the holidays and election years weekly) basis due to Facebook. However, for charities it likely will not be the best place to research a group. AARP has many great tools to help you research groups. For example you can visit the AARP Fraud page for a list of different ways to spot a scam. They also have list of groups they have vetted. Another site I have used to research nonprofits is Charity Navigator . Here you will find the financial background of many charities. Groups such as this have helped expose how many charities look good with marketing but are merely fronts for high executive paychecks. A general rule of thumb is a charity should be giving 80% of the amount they take in back to the mission of their charity. The fact that a CEO makes $500,000 isn’t disqualifying in and of itself. Look at the overall picture of the organization. If that 6 figure salary is 50% of the amount they raise in a year then you should avoid it; however, if that is less than 3% of the organizations gross receipts then it might be fine. Managing an international organization can be expensive; however, there are many groups which do it without milking the profits. Therefore, in closing this post, I will remind you to listen with your heart but give with your mind and if you have trouble separating the two ask for help. We are accepting new clients and are more than willing to help you. Take care.