Fong Law Group

Reports Find Hospice Deficiencies Go Unaddressed

Hospice care is supposed to help terminally ill patients maintain their quality of life at the end of their life, but two new government reports find that serious problems in some hospices may be actually causing harm to hospice patients. The reports propose that additional safeguards are needed. 

Medicare provides a comprehensive hospice benefit that covers any care that is reasonable and necessary for easing the course of a terminal illness. Most hospice care is provided in the home or in a nursing home. State agencies or private contractors survey hospices to make sure they comply with federal regulations. If a hospice fails to meet a standard, the surveyor cites the hospice with a deficiency. 

A pair of reports by the U.S. Department of Health and Human Services’ Office of Inspector General (OIG) found that from 2012 through 2016, more than 80 percent of hospices surveyed had at least one deficiency and one in five had a deficiency serious enough to harm patients. About 300 hospices were identified as “poor performers” and 40 had a history of serious deficiencies.

The reports found that the most common types of deficiencies involved poor care planning, mismanagement of aide services, and inadequate assessments of beneficiaries. Some of the most serious problems that were found included a beneficiary who developed pressure ulcers on both heels, which worsened and developed into gangrene, requiring amputation of one leg. Another beneficiary developed maggots around his feeding tube insertion site. Both of these beneficiaries had to be hospitalized, which hospice is meant to prevent. 

Meanwhile, the OIG found that it is hard for consumers to learn about which hospices are doing a good job. The Centers for Medicare and Medicaid Services (CMS) launched the Hospice Compare website in 2017, but the site does not include information from the surveyors’ reports. Hospices also do not have as strong reporting requirements as nursing homes. In addition, CMS has limited ability to discipline hospices other than to drop the hospice from Medicare. 

The reports provide a number of recommendations to CMS to improve monitoring of hospices, including the following:

• Expanding the data that surveying organizations report to CMS and using these data to strengthen its oversight of hospices 
• Taking steps to include the survey reports on Hospice Compare
• Educating hospices about common deficiencies and those that pose particular risks to beneficiaries
• Increasing oversight of hospices with a history of serious deficiencies
• Strengthening requirements for hospices to report abuse, neglect, and other harm 
• Ensuring that hospices are educating their staff to recognize signs of abuse, neglect, and other harm
• Improving and making user-friendly the process for beneficiaries and caregivers to make complaints. 

To read the OIG reports, click here and here.

For National Public Radio’s coverage of the reports, click here.

New Rule Once Again Allows Nursing Home Arbitration Agreements

The Trump administration is officially rolling back a ban on the use of arbitration agreements by nursing homes that was initiated under President Obama. The Centers for Medicare and Medicaid Services (CMS) issued a rule that once again allows nursing facilities to use arbitration to settle disputes with residents. 

Historically, nursing homes increasingly asked -- or forced -- patients and their families to sign arbitration agreements prior to admission. By signing these agreements, patients or family members gave up their right to sue if they believed the nursing home was responsible for injuries or the patient's death. The dispute had to be settled in private arbitration, and any injury to the patient did not have to be disclosed to the public. 

In 2017, CMS issued a final rule prohibiting nursing homes that accept Medicare and Medicaid from entering into binding arbitration agreements with a resident or their representative before a dispute arises. In doing so, CMS cited abundant evidence that resolving disputes behind closed doors was detrimental to the health and safety of nursing home residents. 

The nursing home industry immediately challenged this rule in court and a U.S. district court issued an injunction prohibiting it from going into effect. The Trump administration then announced it was reviewing the rule. 

The new rule, which takes effect on September 16, 2019, allows nursing homes to enter into pre-dispute arbitration agreements with residents, but prohibits nursing homes from requiring residents to sign an arbitration agreement as a condition for admission. The rule also adds a requirement that facilities give residents a 30-day period to rescind their agreement to arbitrate disputes. And it prohibits language in the arbitration agreement that prevents residents from contacting federal or state authorities. 

Although under the new rule nursing homes will not be able to require residents to sign arbitration agreements as a condition of admission, nursing home resident advocacy groups contend that the effect will in many cases be the same as forcing residents to sign.  

“[T]he circumstances surrounding the admissions process combined with the enormous disparity of bargaining power means that most prospective residents are unaware of the content of what they are signing or the significance of the decision to enter into a pre-dispute arbitration agreement,” the group Justice in Aging said in a statement. “In short, allowing facilities to ask residents to sign pre-dispute arbitration agreements is unfair to residents and their families and will harm their rights, safety, and quality of care.” 

To read the rule, click here.

Medicaid's Gift to Children Who Help Parents Postpone Nursing Home Care

In most states, transferring your house to your children (or someone else) may lead to a Medicaid penalty period, which would make you ineligible for Medicaid for a period of time. However, there are circumstances in which transferring a house will not result in a penalty period.  

One of those circumstances is if the Medicaid applicant transfers the house to a "caretaker child."  This is defined as a child of the applicant who lived in the house for at least two years prior to the applicant's entering a nursing home and who during that period provided care that allowed the applicant to avoid a nursing home stay.  In such cases, the Medicaid applicant may freely transfer a home to the child without triggering a transfer penalty.  Note that the exception applies only to a child, not a grandchild or other relative.

Each state Medicaid agency has its own rules for proof that the child has lived with the parent and provided the necessary level of care, making it doubly important to consult with your attorney before making this (or any other) kind of transfer.

Others to whom a home may be transferred without Medicaid's usual penalty are:

• Your spouse
• A child who is under age 21 or who is blind or disabled
• Into a trust for the sole benefit of a disabled individual under age 65 (even if the trust is for the benefit of the Medicaid applicant, under certain circumstances)
• A sibling who has lived in the home during the year preceding the applicant's institutionalization and who already holds an equity interest in the home

Should You Sell Your Life Insurance Policy?

Older Americans with a life insurance policy that they no longer need have the option to sell the policy to investors. These transactions, called "life settlements," can bring in needed cash, but are they a good idea? 

If your children are grown and your mortgage paid off, you may decide that there is no longer a reason to be paying premiums every month for a life insurance policy, or you may reach a time when you can no longer afford to keep up with the premiums. If this happens, you may be tempted to let the policy lapse and get nothing from it or to surrender the policy for its cash value, which usually is a fraction of its death benefit. Another option is a life settlement. This allows you to sell your policy to an investor for an amount that is greater than the cash value, but less than the death benefit. The buyer pays all future premiums and receives the death benefit when you die. 

Life settlements offer seniors a way to get cash to supplement retirement income and help pay for living expenses, health care, or other needed items. They can be a good alternative to surrendering a policy or letting it lapse. But as with any financial transaction, you need to exercise caution. 

The amount you receive from a life settlement depends on your age, your health, and the terms and conditions of the policy. It is hard to determine if you are getting a fair price for the policy because there are no standard guidelines for life settlements. Before selling you should shop around to several life settlement companies. You should also note that the amount you receive will be reduced by transaction fees, which can eat up a good chunk of the proceeds of the sale. In addition, you may have to pay taxes on the lump sum you receive. Finally, the beneficiaries of your policy may not be pleased with the sale, which is why some life settlement companies require beneficiaries to sign off on the transaction.

Before choosing a life settlement, you should consider other options. If you need cash right away, you can borrow against your policy. If the premiums are too much, you may be able to stop premiums and receive a smaller death benefit. In some cases of terminal illness, you can receive an accelerated death benefit (this allows you to receive a portion of your death benefit while you are still alive). If you don't need the cash but no longer want the policy, another possibility is to donate the policy to charity and get a tax write-off. 

To find out the right solution for you, talk to your elder law attorney.

How to Plan Your Funeral

Thinking about your funeral may not be fun, but planning ahead can be exceedingly helpful for your family. It both lets them know your wishes and assists them during a stressful time. The following are steps you can take to plan ahead:

• Name who is in charge. The first step is to designate someone to make funeral arrangements for you. State law dictates how that appointment is made. In some states, an informal note is enough. Other states require you to designate someone in a formal document, such as a health care power of attorney. If you do not designate someone, your spouse or children are usually given the task. 
• Put your preferences in writing. Write out detailed funeral preferences as well as the requested disposition of your remains. Would you rather be buried or cremated? Do you want a funeral or a memorial service? Where should the funeral or memorial be held? The document can also include information about who should be invited, what you want to wear, who should speak, what music should be played, and who should be pallbearers, among other information. The writing can be a separate document or part of a health care directive. It should not be included in your will because the will may not be opened until long after the funeral. 
• Shop around. It is possible to make arrangements with a funeral home ahead of time, so your family does not have to scramble to set things up while they are grieving. Prices among funeral homes can vary greatly, so it is a good idea to check with a few different ones before settling on the one you want. The Federal Trade Commission's Funeral Rule requires all funeral homes to supply customers with a general price list that details prices for all possible goods or services. The rule also stipulates what kinds of misrepresentations are prohibited and explains what items consumers cannot be required to purchase, among other things. 
• Inform your family members. Make sure you tell your family members about your wishes and let them know where you have written them down. 
• Figure out how to pay for it. Funerals are expensive, so you need to think about how to pay for the one you want. You can pre-pay, but this is risky because the funds can be mismanaged or the funeral home could go out of business. Instead of paying ahead, you can set up a payable-on-death account with your bank. Make the person who will be handling your funeral arrangements the beneficiary (and make sure they know your plans). You will maintain control of your money while you are alive, but when you die it is available immediately, without having to go through probate. Another option is to purchase a life insurance policy that is specifically for funeral arrangements. 

Taking the time to plan ahead will be a big help to your family and give you peace of mind. 

Medicare Launches App to Help Beneficiaries Find Out What's Covered

At the doctor's office and want to know if a procedure is covered by Medicare? There is an app for that. Medicare has launched a free app that gives beneficiaries a quick way to see whether the program covers a specific medical item or service. 

The "What's Covered" app allows you to search or browse to learn what's covered and not covered under Medicare Parts A and B, how and when to get covered benefits, basic cost information and other eligibility details. You can also see a list of covered preventive services. The app does not give results for extra benefits that Medicare Advantage plans may cover but that Original Medicare does not, such as certain vision, hearing or dental benefits. 

Examples of the types of questions the app can answer include:

• When are mammograms covered?
• Is home health care covered?
• Will Medicare pay for diabetes supplies?
• Can I get a regular cervical cancer screening?
• Will my Medicare benefits cover a service to help me stop smoking?

Although the app provides beneficiaries with basic information, it doesn’t provide personalized information. It doesn't ask details about each user's specific insurance information, so it doesn't take into account the user's supplemental insurance, co-insurance, and deductibles. Essentially, the app provides another way for Medicare beneficiaries to get the same information that is available online and in the Medicare handbook.

The app is part of an initiative by the Centers for Medicare and Medicaid Services (CMS) focused on modernizing Medicare and empowering beneficiaries. Other initiatives include:

• Enhanced interactive online decision support to help beneficiaries better understand and evaluate the coverage options and costs of original Medicare compared to Medicare Advantage plans.
• New price transparency tools that let consumers compare the national average costs of certain procedures between settings, so people can see what they’ll pay for procedures done in a hospital outpatient department versus an ambulatory surgical center. 
• A new webchat option in the Medicare Plan Finder.  
• New easy-to-use surveys across Medicare.gov so consumers can tell CMS what they want.

To get the new "What's Covered" app, go here: https://www.medicare.gov/blog/whats-covered-mobile-app.

How Gifts Can Affect Medicaid Eligibility

We’ve all heard that it’s better to give than to receive, but if you think you might someday want to apply for Medicaid long-term care benefits, you need to be careful because giving away money or property can interfere with your eligibility. 

Under federal Medicaid law, if you transfer certain assets within five years before applying for Medicaid, you will be ineligible for a period of time (called a transfer penalty), depending on how much money you transferred. Even small transfers can affect eligibility. While federal law allows individuals to gift up to $15,000 a year (in 2019) without having to pay a gift tax, Medicaid law still treats that gift as a transfer.

Any transfer that you make, however innocent, will come under scrutiny. For example, Medicaid does not have an exception for gifts to charities. If you give money to a charity, it could affect your Medicaid eligibility down the road. Similarly, gifts for holidays, weddings, birthdays, and graduations can all cause a transfer penalty. If you buy something for a friend or relative, this could also result in a transfer penalty.

Spending a lot of cash all at once or over time could prompt the state to request documentation showing how the money was spent. If you don't have documentation showing that you received fair market value in return for a transferred asset, you could be subject to a transfer penalty.

While most transfers are penalized, certain transfers are exempt from this penalty. Even after entering a nursing home, you may transfer any asset to the following individuals without having to wait out a period of Medicaid ineligibility:

• your spouse
• your child who is blind or permanently disabled
• a trust for the sole benefit of anyone under age 65 who is permanently disabled

In addition, you may transfer your home to the following individuals (as well as to those listed above):

• your child who is under age 21
• your child who has lived in your home for at least two years prior to your moving to a nursing home and who provided you with care that allowed you to stay at home during that time
• a sibling who already has an equity interest in the house and who lived there for at least a year before you moved to a nursing home

Before giving away assets or property, check with your attorney to ensure that it won't affect your Medicaid eligibility.

Tips on Creating an Estate Plan that Benefits a Child with Special Needs

Parents want their children to be taken care of after they die. But children with disabilities have increased financial and care needs, so ensuring their long-term welfare can be tricky. Proper planning by parents is necessary to benefit the child with a disability, including an adult child, as well as assist any siblings who may be left with the caretaking responsibility.

Special Needs Trusts           
The best and most comprehensive option to protect a loved one is to set up a special needs trust (also called a supplemental needs trust). These trusts allow beneficiaries to receive inheritances, gifts, lawsuit settlements, or other funds and yet not lose their eligibility for certain government programs, such as Medicaid and Supplemental Security Income (SSI). The trusts are drafted so that the funds will not be considered to belong to the beneficiaries in determining their eligibility for public benefits.

There are three main types of special needs trusts:

• A first-party trust is designed to hold a beneficiary's own assets. While the beneficiary is living, the funds in the trust are used for the beneficiary's benefit, and when the beneficiary dies, any assets remaining in the trust are used to reimburse the government for the cost of medical care. These trusts are especially useful for beneficiaries who are receiving Medicaid, SSI or other needs-based benefits and come into large amounts of money, because the trust allows the beneficiaries to retain their benefits while still being able to use their own funds when necessary.
• The third-party special needs trust is most often used by parents and other family members to assist a person with special needs. These trusts can hold any kind of asset imaginable belonging to the family member or other individual, including a house, stocks and bonds, and other types of investments. The third-party trust functions like a first-party special needs trust in that the assets held in the trust do not affect a beneficiary's access to benefits and the funds can be used to pay for the beneficiary's supplemental needs beyond those covered by government benefits. But a third-party special needs trust does not contain the "payback" provision found in first-party trusts. This means that when the beneficiary with special needs dies, any funds remaining in the trust can pass to other family members, or to charity, without having to be used to reimburse the government.
• A pooled trust is an alternative to the first-party special needs trust.  Essentially, a charity sets up these trusts that allow beneficiaries to pool their resources with those of other trust beneficiaries for investment purposes, while still maintaining separate accounts for each beneficiary's needs. When the beneficiary dies, the funds remaining in the account reimburse the government for care, but a portion also goes towards the non-profit organization responsible for managing the trust.

Life Insurance
Not everyone has a large chunk of money that can be left to a special needs trust, so life insurance can be an essential tool. If you've established a special needs trust, a life insurance policy can pay directly into it, and it does not have to go through probate or be subject to estate tax. Be sure to review the beneficiary designation to make sure it names the trust, not the child. You should make sure you have enough insurance to pay for your child's care long after you are gone. Without proper funding, the burden of care may fall on siblings or other family members. Using a life insurance policy will also guarantee future funding for the trust while keeping the parents' estate intact for other family members. When looking for life insurance, consider a second-to-die policy. This type of policy only pays out after the second parent dies, and it has the benefit of lower premiums than regular life insurance policies. 

ABLE Account
An Achieving a Better Life Experience (ABLE) account allows people with disabilities who became disabled before they turned 26 to set aside up to $15,000 a year in tax-free savings accounts without affecting their eligibility for government benefits. This money can come from the individual with the disability or anyone else who may wish to give him money.

Created by Congress in 2014 and modeled on 529 savings plans for higher education, these accounts can be used to pay for qualifying expenses of the account beneficiary, such as the costs of treating the disability or for education, housing and health care, among other things. ABLE account programs have been rolling out on a state-by-state basis, but even if your state does not yet have its own program, many state programs allow out-of-state beneficiaries to open accounts. (For a directory of state programs, click here.)

Although it may be easy to set up an ABLE account, there are many hidden pitfalls associated with spending the funds in the accounts, both for the beneficiary and for her family members. In addition, ABLE accounts cannot hold more than $100,000 without jeopardizing government benefits like Medicaid and SSI. If there are funds remaining in an ABLE account upon the death of the account beneficiary, they must be first used to reimburse the government for Medicaid benefits received by the beneficiary, and then the remaining funds will have to pass through probate in order to be transferred to the beneficiary's heirs.  

Get Help With Your Plan
However you decide to provide for a child with special needs, proper planning is essential. Talk to your attorney to determine the best plan for your family. 

Medicare's Different Treatment of the Two Main Post-Hospital Care Options

Hospital patients who need additional care after being discharged from the hospital are usually sent to either an inpatient rehabilitation facility (IRF) or a skilled nursing facility (SNF). Although these facilities may look similar from the outside, Medicare offers very different coverage for each. While you may not have complete say in where you go after a hospital stay, understanding the difference between the two facilities can help you advocate for what you need and know what to expect with regard to Medicare coverage. 
 
An IRF can be either part of a hospital or a stand-alone facility that offers intensive physical and occupational therapy under the supervision of a doctor and nurses. IRFs offer a minimum of three hours a day of rehabilitation therapy. An SNF, on the other hand, provides full-time nursing care. Patients also receive physical and occupational therapy, but the care is generally less intensive and specialized than in an IRF. 

IRFs and Medicare

Medicare Part A covers a stay in an IRF in the same way it covers hospital stays. Medicare pays for 90 days of hospital care per "spell of illness," plus an additional lifetime reserve of 60 days. A single "spell of illness" begins when the patient is admitted to a hospital or other covered facility, and ends when the patient has gone 60 days without being readmitted to a hospital or other facility. There is no limit on the number of spells of illness. However, the patient must satisfy a deductible before Medicare begins paying for treatment. This deductible, which changes annually, is $1,364 in 2019. 

After the deductible is satisfied, Medicare will pay for virtually all hospital charges during the first 60 days of a recipient's hospital stay. If the hospital stay extends beyond 60 days, the Medicare beneficiary begins shouldering more of the cost of his or her care. From day 61 through day 90, the patient pays a coinsurance of $341 a day in 2019. Beyond the 90th day, the patient begins to tap into his or her 60-day lifetime reserve. During hospital stays covered by these reserve days, beneficiaries must pay a coinsurance of $682 per day in 2019.  

To qualify for care in an IRF, you must need 24-hour access to a doctor and a nurse with experience in rehabilitation. You must also be able to handle three hours of therapy a day (although there can be exceptions). 

SNFs and Medicare

Medicare's coverage of skilled nursing care is more limited. Medicare Part A covers up to 100 days of "skilled nursing" care per spell of illness. Beginning on day 21 of the nursing home stay, there is a copayment equal to one-eighth of the initial hospital deductible ($170.50 a day in 2019). However, the conditions for obtaining Medicare coverage of a nursing home stay are quite stringent. Here are the main requirements:

• The Medicare recipient must enter the nursing home no more than 30 days after a hospital stay (meaning admission as an inpatient; "observation status" does not count) that itself lasted for at least three days (not counting the day of discharge).
• The care provided in the nursing home must be for the same condition that caused the hospitalization (or a condition medically related to it).
• The patient must receive a "skilled" level of care in the nursing facility that cannot be provided at home or on an outpatient basis. In order to be considered "skilled," nursing care must be ordered by a physician and delivered by, or under the supervision of, a professional such as a physical therapist, registered nurse or licensed practical nurse. Moreover, such care must be delivered on a daily basis. (Few nursing home residents receive this level of care.)

A new spell of illness can begin if the patient has not received skilled care, either in an SNF or in a hospital, for a period of 60 consecutive days. The patient can remain in the SNF and still qualify as long as he or she does not receive a skilled level of care during that 60 days.

Keep in mind that some or all of Medicare’s deductibles and co-payments for both IRF and SNF care may be covered by Medicare supplemental insurance, also called Medigap coverage.  

A Final Retirement Account Distribution Must Still Be Made After Death 最後的退休賬戶分配仍必須在去世後進行(中英對照)

Federal law requires that beginning on April 1 of the year after you reach age 70 1/2, you must beginwithdrawing a minimum amount from your non-Roth individual retirement account (IRA) or 401(k) accounts. These withdrawals are called required minimum distributions (RMDs).

But what if you die after age 70 1/2 and before all the account funds have been distributed? In the eyes of the law, death is no excuse not to take RMDs from an IRA or 401(k). Your heirs must take the final RMD before they can take control of the account.  

Congress created the rules governing the minimum distribution of retirement plan funds to encourage saving for retirement and to allow retirement assets to build up tax-free during the plan owner's working years. But lawmakers built in provisions so the money wouldn’t simply keep accumulating tax-free forever. The funds you withdraw are treated as taxable income in the year you take the distribution. If you don’t start taking the RMDs from your retirement accounts and pay taxes on the withdrawals, you will face a 50 percent penalty on what should have been withdrawn but wasn’t.

The rules for inheriting an IRA as a spouse are different than the rules for a non-spouse beneficiary, but regardless of who is inheriting the IRA, the heir must take the RMD for the year the account owner died. The full RMD must be taken by December 31 in the year the account owner died, even if he or she died at the beginning of the year. To take the RMD, beneficiaries must contact the custodian of the account and submit a death certificate. If the account owner died before he or she was required to begin distributions, then the beneficiaries do not need to take an RMD. 

The money from the RMD will go directly to the beneficiary listed on the account, not the estate. That means it will be taxable income for the beneficiary. If there is more than one beneficiary, it will be split evenly. 

To find out the best way to deal with an inherited IRA, contact an elder law attorney. 

聯邦法律規定在您70 歲半之後的一年的4月1日開始，您必須從您的Roth非個人退休賬戶（IRA）或401（k）賬戶中開始提取最低金額。這些提取稱為最低的必須提取額（RMDs）。

但是，如果你在70歲半過世,而過世時帳戶資金還沒被提取, 那怎麼辦？在法律的眼中，死亡不是不從IRA或401（k）中提取RMD的藉口。您的繼承人必須先提取最後的RMD才能控制該帳戶。

國會立例去管理退休計劃資金最低提取的規則，以鼓勵為退休而儲蓄，並允許退休資產在計劃擁有人的工作年間免稅。但立法者建立了條款，所以累積這筆錢不會永遠地免稅。您提取的資金在您進行分配的那一年被視為應稅收入。如果您沒有從退休賬戶中開始使用RMD並對提款付稅，那麼您應該提取而沒有提取的金額將面臨5成的罰款。

作為配偶去繼承IRA的規則與非配偶受益人的規則不同，但無論由誰去繼承IRA，繼承人必須在賬戶擁有人去世的那一年提取RMD。整個RMD必須在帳戶擁有人去世的那一年的12月31日之前提取，即使他是在年初去世。要提取RMD，受益人必須聯繫帳戶的管理人並提交死亡證明。如果帳戶擁有人在他需要提取之前去世，那麼受益人不需要提取RMD。

RMD的資金將直接轉給賬戶上列出的受益人，而不是遺產。即是說這將是受益人的應稅收入。如果有一個以上的受益人，它將被均分。

要找到最佳的處理繼承IRA的方法，請聯繫老人法律師。