Case of the Week: 7/22/05

County: Wetzel
Age: 64

Client's Social Security was garnished for past due child support. Because his income is very low and my client is in poor health, I sent Child Protective Services a letter explaining that the garnishment creates an undue hardship for my client, who needs the income to keep up with medical expenses. After reviewing my client's case and his circumstances, Child Protective Services reduced the amount of garnishment to $20 per month.

Change in WV M'caid Estate Recovery Practice?

An article by Sarah Lueck appeared June 24, 2005 in the Pittsburgh Post-Gazette (apparently a reprint from the Wall Street Journal) about Medicaid Estate Recovery. Specifically the article focuses on how states are more aggressively pursuing estate recovery as one way to offset increasing Medicaid budgets. www.post-gazette.com/pg/05175/528036.stm

The article claims that "West Virginia has made a notable about-face" from our 2000 Attorney General's lawsuit challenging the recovery mandate and the practice of only pursuing recovery in estates valued at $50,000 or more, to now going after estates as small as $5,000.

Though federal and state law in West Virginia have permitted recovery in estates valued between $5,000 and $50,000, the state Medicaid entity (the Bureau of Medical Services) has maintained a practice of not pursuing estates under $50,000. The state contracts with a Boston-based firm to handle recoveries of $50,000+ estates. If the article is correct in its assertion that the practice is changing, seniors who benefit from long-term care Medicaid (either in a nursing home or through home-based services) whose estates are between $5,000 and $50,000 need to be aware of the increased likelihood of recovery against their estates.

AARP's Public Policy Institute recently released a report which studies estate recovery practices across the nation. An article about the report appears in the Sumemr 2005 issue of the West Virginia Elder Advocacy Quarterly, available online at www.seniorlegalaid.org/newsletter_detail.cfm?H=297&E=25

Senior West Virginians age 60 and over may speak to an attorney at West Virginia Senior Legal Aid about long-term care Medicaid eligibility, transfers of assets, estate recovery, and planning generally by calling 1-800-229-5068.

Finally Aging Gets A Commissioner

Gov. Joe Manchin announced yesterday that Sandra K. Vanin, Ed.D., Director of The Friday Clinic at West Virginia University’s Center for Excellence in Disabilities, has agreed to serve as Commissioner of the West Virginia Bureau of Senior Services, effective Aug. 1, 2005.

Medicaid Commission members named, and WV BMS Commissioner included

FOR IMMEDIATE RELEASE
Contact: HHS Press Office
Friday, July 8, 2005
(202) 690-6343

HHS SECRETARY NAMES MEDICAID ADVISORY COMMISSION MEMBERS
Former Tennessee Governor Named Chair; Former Maine Governor Named Vice-Chair

HHS Secretary Mike Leavitt today announced 13 voting members and 15 non-voting members of an advisory commission charged with identifying reforms necessary to stabilize and strengthen Medicaid.

Consisting of health policy leaders from both sides of the aisle, state health department officials, public policy organizations, individuals with disabilities and others with special expertise, the commission will submit its first report to Secretary Leavitt by Sept. 1. Through the FY 2006 budget agreement, the Department of Health and Human Services agreed to create this commission to develop proposals on the future of the Medicaid program.

"In Washington and state capitols across America, there is consensus that now is the time to reform and modernize Medicaid," Secretary Leavitt said. "I look forward to having a robust conversation in an open and bipartisan manner with the commission members. Together with Congress and the states, we will create a plan that will better help Medicaid fulfill its commitment to quality care in a way that is financially sustainable."

In addition, the Secretary is holding open two vacancies on the commission for current governors so that they may join after Sept. 1, 2005 when the commission focuses on the longer-term methods of modernizing the Medicaid program. The National Governors Association Center for Best Practices will serve as a working group tasked with informing the commission on the range of issues that will be considered.

Former Tennessee Governor Don Sundquist will chair the commission and former Maine Governor Angus King will serve as vice-chair. The commission members are:

* Nancy Atkins, commissioner for the Bureau for Medical Services, Department of Health and Human Resources, West Virginia
* Melanie Bella, vice president for policy, Center for Health Care Strategies, Inc.
* Gail Christopher, vice president for health, Women and Families at the Joint Center for Political and Economic Studies and director of the Joint Center Health Policy Institute
* Gwen Gillenwater, director for advocacy and public policy, National Council on Independent Living
* Robert Helms, resident scholar and director of health policy studies, American Enterprise Institute
* Kay James, former director of the U.S. Office of Personnel Management
* Troy Justesen, deputy assistant secretary for the office of special education and rehabilitative services, U.S. Department of Education
* Tony McCann, secretary of health and mental hygiene, Maryland
* Mike O'Grady, assistant secretary for planning and evaluation, U.S. Department of Health and Human Services
* Bill Shiebler, former president, Deutsche Bank
* Grace-Marie Turner, president, Galen Institute

In addition to the voting members, the commission will consist of the following non-voting members:

* James Anderson, president and CEO, Cincinnati Children's Hospital Medical Center, National Association of Children's Hospitals
* Julianne Beckett, director of national policy, Family Voices
* Carol Berkowitz, pediatrician, president of the American Academy of Pediatrics
* Maggie Brooks, county executive, Monroe County, New York
* Valerie Davidson, executive VP, Yukon-Kuskokwim Health Corporation
* Mark de Bruin, senior VP of pharmacy services, Rite Aid; chairman of the policy council, National Association of Chain Drug Stores
* John Kemp, CEO, Disability Service Providers of America
* Joseph Marshall, chairman and CEO, Temple University Health System, American Hospital Association
* John Monahan, president of state sponsored programs for WellPoint; Blue Cross/Blue Shield Association and America's Health Insurance Plans
* John Nelson, physician, immediate past-president of the American Medical Association
* Joseph J. Piccione, corporate director of mission integration, OSF Healthcare System
* John Rugge, CEO, Hudson Headwaters Health Network, National Association of Community Health Centers
* Douglas Struyk, president and CEO, Christian Health Care Center, American Health Care Association/National Center for Assisted Living and American Association of Homes and Services for the Aging
* Howard Weitz, cardiologist, Thomas Jefferson University
* Joy Johnson Wilson, director of health policy and federal affairs counsel, National Conference of State Legislators

The Medicaid commission must submit two reports to Secretary Leavitt. By Sept. 1, the commission will outline recommendations for Medicaid to achieve $10 billion in reductions in spending growth during the next five years as well as ways to begin meaningful long-term enhancements that can better serve beneficiaries. The commission, for its first report, also will consider potential performance goals for Medicaid as a basis of longer-term recommendations.

The second report, due Dec. 31, 2006, will provide recommendations to help ensure the long-term sustainability of Medicaid. The proposals will address key issues such as:

*How to expand coverage to more Americans while still being fiscally responsible;
*Ways to provide long-term care to those who need it;
*A review of eligibility, benefits design, and delivery; and
*Improved quality of care, choice and beneficiary satisfaction.

A full copy of the commission's charter is available at http://www.cms.hhs.gov/faca/mc/default.asp.

case of the Week: 7/01/2005

My client is an 89-year-old resident of Monongalia County. She needed a DPOA in order for her son to manage her finances. Since she is housebound, low income, and time is of the essence, I was able to advise her about DPOAs, discuss the powers she wanted to include, and draft a DPOA for her.

Aged and Disabled Waiver Renewal: The good, the bad, & the ugly

The Aged and Disabled Medicaid Waiver (A/D Waiver) program provides in-home Medicaid-funded services to low-income West Virginians who need help with activities of daily living. To qualify medically, the participant must have at least 5 "deficits" according to the Pre-Admission Screening, needing the same level of care required for Medicaid-covered nursing home admission. The program has 5,400 slots or participants, and there has been a 6 month waitlist in place for over a year. Basically this program helps people stay living at home and avoid having to move to a nursing home by providing help with activities of daily living, ie. walking, bathing, dressing, eating, toileting, as well as instrumental activites of daily living, ie. meal preparation, house work, and shopping. This program is one of the important pieces of the Olmstead puzzle, how the state discharges its duty to support community-based living.

The A/D Waiver is up for 5 year renewal through the Centers for Medicare and Medicaid Services (CMS). The renewal application includes some significant changes, both positive and negative, as well as some missed opportunities for change in leaving certain areas as is.

The Good
The self-directed option that is being funded through a Robert Wood Johnson grant will enable participants to take control over their own services. The option to self-direct will be entirely voluntary, only approximately 10% of participants are expected to try it, and participants can choose to go back to the traditional model any time. In a nutshell, the self-directed option will allow a participant to take a budget (which will be determined by the amount of $ the participant's level of service would have cost under the traditional model, minus a small adminstrative fee), and create a service plan within that budget designed to suit the participant's service needs. Self-directed participants will become the employers for individuals they choose to hire to serve their needs, or can contract with existing providers for staff. They can hire their spouses, family, and friends, if they choose. They can choose to bank some of the monthly budget to save up for home modifications, assistive technology, or other items they need. They won't just get the cash, approved costs will be paid through a fiscal intermediary.

This option will not only empower those participants to take control of their own lives, it can help address the serious staffing shortage that has plagued the program for years. This is the best part of the Waiver renewal changes, and I hope this program is so successful that we start incorporating the best aspects of consumer direction into all areas of Medicaid in West Virginia.

The Bad
The Waiver still has a 6 month waitlist, and still has no triage or prioritization to allow needier people to get on the program quicker. I know this is a contentious issue, especially for those who do not have the highest need, and therefore would not be prioritized. I think a priority system can address those folks, for example by having a person become a priority once he or she has been on the waitlist for a specified length of time. At any rate, we have had the heartbreak of telling a senior with Lou Gehrig's disease, who came home to West Virginia to die, that she had to wait at least 6 months for waiver services, though her prognosis gave her less than 6 months to leave. We missed a great opportunity to deeply help this woman, and her slot would have been available for the next person in less than the waitlist period anyway. Other states have prioritization that works, we could do it, too.

The Ugly
Though many providers who are just learning about the self-directed option are very worried about the impact it will have on their bottom line, the more worrisome aspect of the renewal application for them is the significant reduction in slots. While self-direction might move as many as 540 participants off provider roles (though many will doubtlessly still choose to contract with providers for services), by the 2d year the program proposes to cut 2,000 slots.

As an advocate for seniors and people with disabilities this is deeply disturbing to me. This is absolutely going backwards in our Olmstead efforts. This program helps people leave nursing homes to live back in the community, helps people in the community stay home longer, and is already so underfunded that we have a 6 month waitlist and very low maximum levels of service provided. Generally participants get 25 hours of services or less per week on the program, not even enough to allow a family caregiver to continue to work a full-time paying job in addition to caring for a person with a disability.

Though states may apply for changes before the expiration of their waivers (5 years in this case), renewal time is the best chance to try to progress. I think the reduction in slots on this waiver proposal is not outweighed by the improvement the self-directed option will bring, and overall the new proposed version of the waiver is worse for West Virginia rather than better.

Case of the Week: 5/9/2005

County: Randolph
Age: 68

Client was contacted by the Department of Labor regarding an overpayment of Blacklung benefits to her deceased father. The Department of Labor was holding the client responsible as executor of her father's estate. I contacted the claims examiner on my client's behalf and explained that to the best of my client's knowledge the deceased left nothing in his estate. Moreover, the overpayments were never used for my client's benefit. Her father passed away at a nursing home with no assets. As a result, the estate was never probated. The claims examiner investigated the estate of the client's father and notified me that the debt will be written-off as uncollectable. Our client will no longer be held responsible for her father's overpayment.

Case of the Week: 5/02/2005

County: Randolph
Age: 67

My client was contacted by a collection agency for a past due debt of approximately $800. Over half of the debt is for charges from 10 years ago. I contacted the collection agency on my client's behalf and informed them that the West Virginia Statue of Limitations bars collection of a debt that is 10 years or older, unless there is an acknowledgement with a new promise to pay. My client made no such acknowledgement. As a result, the majority of the debt was forgiven. My client can settle the account with less than $50.

Social Security beneficiaries who owe back federal taxes may be subject to 15% levy

An IRS policy that has permited the IRS to levy against federal employees and federal pensioners will be expanded as of July 2005. The expansion is expected to affect 90,000 additional taxpayers, specifically Social Security beneficiaries. The policy subjects the taxpayers to a 15% flat offset payment of federal back taxes from their Social Security benefits.

The Taxpayer Advocate Services for West Virginia can be reached at 304-420-8695, and the National Taxpayer Advocate toll free number is 1-877-777-4778, both services are free.

Case of the Week: 4/18/2005

County: Mingo
Age: 83

This 83-year-old gentleman from Mingo County contacted West Virginia Senior Legal Aid after he discovered his credit card had charged him for a service for four months that he never asked for or authorized. He tried to work with the credit card company, but with limited success. One his behalf, I wrote the credit card company a letter requesting that my client be disenrolled in the service and refunded the four months he was charged for the service. My client informs me that the credit card company has disenrolled him and he will be receiving a refund for the four months he was charged.

Case of the Week: 4/12/05

County: Randolph
Age: 65

Our client is an elderly lady who contacted us regarding a collection notice she received for a debt she does not believe she owes. I reviewed the notice, which fails to state the creditor on whose behalf they are collecting. The collection company, holding itself out as an attorney's office, has also contacted her threatening to sue if she does not pay. They have also threatened that if she does not pay she will owe 10 times more than she currenly owes. I explained that the company may be in violation of Consumer Protection Laws. I forwarded her a complaint form for the West Virginia Attorney General's office. I also explained her right to send the collection company a cease letter. I also evaluated her case and informed her that the likelihood of the company actually suing is slim since the debt is very small and the company is out of state. It would cost more for the company to hire an attorney and pursue the debt.

Bill Tracking feature on WV Legislature site up and running

The West Virginia Legislature's website keeps on improving. Though there have been links to "bill tracking" on the site for quite a while, the function is just recently accessible. See it here.

It's pretty simple to use, you create a username/password combination, log-in, and choose bills you wish to track. You can keep and name different lists of bills you are tracking.

The report you get when you check in on the bills you track is a little bit difficult to understand. You first have to know the vocabulary of bills moving through the legislative process, for example the difference between an enrolled bill and an engrossed bill. There is a "date" field, but it's not obvious to what that refers.

Even though the results report is a little difficult to understand, it is useful for seeing whether action is getting taken on any tracked bill, and can alert users to investigate the specifics of the actions taken on bills that interest them.

Update on Budget Digest

The House and Senate Budget Conferees of the West Virginia Legislature have decided to work on drafting the 2006 Budget Digest in hopes that the West Virginia Supreme Court of Appeals will lift its stay, according to an article in today's Charleston Gazette. On December 1, 2004 the state's high Court issued the stay specifically preventing approval or adoption of a Budget Digest for 2006 by the Legislature.

The pending lawsuit was filed on behalf of a West Virginian who lost her home to a predatory lender. The suit alleges that the foreclosure resulted from state funds diverted through the Budget Digest which should have gone to the State Ethics Commission for cracking down on predatory lenders.

The Budget Digest is technically a list of recommendations for the spending of state funds. Opponents claim it has the force of more than just suggestion, because state agencies fear fiscal retaliation if they choose not to follow the Digest's recommendations. For more information about the Budget Digest and this lawsuit see the West Virginia Elder Advocacy article about it from Winter 2004.

The Budget Digest traditionally provides some funds for aging programs across the state each year, so the outcome of the lawsuit will have an impact on West Virginia seniors.

Case of the Week: 4/4/05

County: Barbour
Age: 64

Our client is a 64-year-old elderly lady who receives Social Security benefits. She contacted us because she was concerned about an organization being appointed as her representative payee. She contends she is able to manage her finances and if she needs someone to do it for her, she'd like to have someone else appointed. After reviewing her case, I was able to determine that she is still within her time to appeal. I explained when her deadline is to appeal the Social Security Administration's decision, outlined the appeal process for her, forwarded her a copy of a SSA-561 Request for Reconsideration form, and consulted with her regarding possible legal strategies in her appeal.

Terri Schiavo dies 13 days after feeding tube removed

This morning Theresa "Terri" Schiavo died in hospice in Pinellas Park, FL, at age 41. See Bloomberg report.

WV Legislature considering bill to permit physicians to refuse to provide medical treatment in certain cases

The Terri Schiavo case has brought the bioethical considerations of medical decisionmaking for incapacitated people out into public discussion. For this reason, perhaps more than just aging and disability advocates will be interested in SB 399 currently under consideration in the West Virginia Legislature.

SB 399 adds medical futility concepts to West Virginia's Healthcare Decisions Act. See the text of the bill here [Please note that as the bill moves through the legislature and changes are made, this link will not necessarily lead to the most current version of the bill. See the legislature's main page for information on how to get the most current version of a bill.] As is noted at the bottom of the text of this bill, "The purpose of this bill is to provide that a physician, in certain circumstances, may refuse medical treatment where within a degree of medical certainty the treatment would be ineffective."

In addition to amending the language of the current Healthcare Decisions Act language, this bill would add an entirely new section:

§16-30-26. Medically ineffective treatment.
(a) Once the attending physician has determined that a person's expressed directive or health care decision made by a person's appropriate decisionmaker requests treatment that is medically ineffective or that is contrary to accepted health care guidelines, the attending physician, other health care provider, or health care facility may decline to comply with the person's expressed directive or health care decision made by a person's appropriate decisionmaker: Provided, That a second licensed physician who has examined the person concurs with the determination of the attending physician and documents this finding in the person's medical record.
(b) An attending physician, other health care provider, or health care facility that declines to comply with a person's expressed directive or health care decision pursuant to subsection (a) shall:

(1) Promptly so inform the person, if possible, and the appropriate decisionmaker, explain other options for treatment of the person's condition and record an entry in the person's medical record indicating the basis for the determination that the requested medical treatment will be medically ineffective or health care contrary to accepted guidelines and their unwillingness to comply. If transfer of the person to another attending physician is desired, the person or the person's appropriate decisionmaker shall have responsibility for arranging the transfer of the person to another health care provider;
(2) Provide continuing care, including continuing life- prolonging intervention, to the person until a transfer can be effected, if desired and feasible, except as provided in subsection (c) of this section; and
(3) Cooperate with and not impede the transfer of the person to another health care provider and health care facility identified by the person, or the person's appropriate decisionmaker; a transfer under these circumstances shall not constitute abandonment.
(c) If the person or the person's appropriate decisionmaker requests a transfer pursuant to subsection (b) of this section, but after a period of seven days from the date of the health care provider's entry in the person's medical record described in subdivision (1), subsection (b) of this section no health care provider and health care facility can be found who is willing to comply with the request for medically ineffective treatment or treatment contrary to accepted health care guidelines, then the health care provider and health care facility shall no longer be obligated to provide the life-prolonging intervention.
(d) If the attending physician and health care facility decide to withhold or withdraw the requested treatment after a willing health care provider and health care facility has not been found pursuant to subsection (c) of this section, then the attending physician and health care facility shall so inform the person, if possible, and any person then authorized to make health care decisions for the person and withhold or withdraw the treatment following a period of not less than seventy-two hours.
(e) Nothing in this section is intended to interfere with the authority of a person, or the person's appropriate decisionmaker as appropriate, to decline or withdraw consent for any unwanted medical treatment or procedure.

Some advocates are concerned that "degree of medical certainty" can never be defined clearly enough to avoid significant discretion in the hands of physicians. And significant discretion usually means the least powerful among us get the short end of the stick, which may mean no longer keeping you alive.

Under current West Virginia law, there appears to be no requirement that physicians provide treatment that they believe to be medically futile. This bill includes affirmative protection from liability to physicians who refuse to provide such treatment.

Proponents of the bill cite, among other things, that the changes would address the most common reason for ethics consultations in West Virginia hospitals, preserves health care provider and health care facility integrity, and reduces medically inappropriate health care costs (see rationale from WVU's Center for Health Ethics and Law).

Current status of the bill: The measure has passed the full Senate and is currently in the House Judiciary committee.

This bill seems to be passing through the legislature largely below the radar of various interested groups. Because all pending legislation is likely to start moving quickly as the regular session nears its end, interested individuals and groups have little time left to have an impact on their legislators.

Aged and Disabled Medicaid Waiver class action settles

Cyrus et al v. Nusbaum, case number 3:04cv00892 in U.S. District Court in Huntington, has settled. The case presented due process challenges to the initial medical eligibility and periodic re-evaluation processes beneficiaries must go through to receive home and community-based care under the waiver. Early in the litigation the court had issued a temporary restraining order requiring the state to reinstate services for beneficiaries who had been terminated following re-evaluations done since November 2003 (when WVMI's contract to complete the PAS 2000 forms became effective).

The settlement provides for several improvements in evaluation, re-evaluation, and notice of denial. Specifically:

• regular annual re-evaluations must include input from the beneficiary's treating physician


• home visits require at least 2 weeks advance notice


• though nurses can still fill out the PAS they cannot make medical diagnoses, diagnostic information must come from a physician


• more complete information must be provided with denials of medical eligibility, including a copy of the PAS and explanation of denial including discussion of the deficits and relevant medical standards


• before final denial can be issued there will be notice of a Potential Denial including the information above and providing a two-week opportunity for the beneficiary to submit supplemental information to be considered

Case of the Week: 3/1/05

County: Mineral
Age: 83

Our client is an 83-year-old lady who is finding it more difficult to live in her current apartment complex. She contacted West Virginia Senior Legal Aid to see what her rights are under her lease and if she could break it without a penalty. I reviewed her lease and contacted management. Although not included in the lease terms, management informed me that it is their policy that when tenants leave due to medical necessity they will be released from the lease without penalty. The reason being is that the management understands that sometimes tenants need to move to apartment complexes more suitable to their needs. My client was prepared to forfeit her security deposit, but is happy that that will no longer be the case as she is moving due to medical necessity.

Case of the Week: 2/21/05

County: Marshall
Age: 91

Our client is a 91 year old man who recently moved to West Virginia from Florida. He had a valid driver’s license from Florida that would expire because he changed his residency. After unsuccessfully attempting to have a new WV License issued, he contacted us. Under the newer rules, applicants are required to prove United States Citizenship via a birth certificate. My client was born in in another state before 1920, and there was no record of my client’s birth. He has a social security number, voter registration, and a valid driver’s license from another state, but that was not enough. After reviewing the CSR, I discovered that the Commission has the discretion to issue licenses even when certain required documentation is not available. After several contacts with the Commissioner, General Counselor, and Manager of Drivers Licensing, the DMV has decided to issue my client a new driver’s license. However, it should be noted that legislation at the federal level, if enacted, will require states to verify all documentation. This will make it more difficult for applicants who fail to provide the required documentation.

Links to info and regs for Medicare Part D and Medicare Advantage Programs

Medicare Modernization Act

Prescription Drug Benefit / Medicare Advantage Programs

General Information

· Press Release (PDF, 45 KB)

· Technical Fact Sheets

o Medicare Fact Sheet: Final Rules Implementing the New Medicare Law: A New Prescription Drug Benefit for All Medicare Beneficiaries, Improvements to Medicare Health Plans and Establishing Options for Retirees (PDF, 113 KB)

o Medicare Fact Sheet: PRINCIPAL CHANGES IN NEW MEDICARE FROM PROPOSED RULES TO FINAL RULES

o New Rules Establish New Prescription Drug Benefit, Improvements to Medicare Health Plans and Options for Retirees (PDF, 93 KB)

· Timelines

o General Timeline (PDF, 226 KB)

o Beneficiary Calendar (PDF, 105 KB)

o State Timeline (PDF, 31 KB)

o Plan Timeline (PDF, 47 KB)

o Employer Dates (PDF, 12 KB)

· Index of the Regulation

o Title I - Prescription Drug Benefit (PDF, 66 KB)

o Title II - Medicare Advantage Plans (PDF, 32 KB)

· Technical Issue Papers

· Prescription Drug Plan - Title I (CMS 4068-F)

o Regulation (PDF, 2 MB) (1,162 pages) (Also available from the Federal Register)

o Title I Summary (PDF, 91 KB)

o Basic Summary of What's Changed Since NPRM (PDF, 93 KB)

o Technical Summary of What's Changed Since NPRM (PDF, 75 KB)

o Retiree Options (PDF, 31 KB)

o Implementation Materials, Including Applications and Formulary Guidance

· Medicare Advantage Plans - Title II (CMS 4069-F)

o Regulation (PDF, 1 MB) (445 pages) (Also available from the Federal Register)

o Title II Summary (PDF, 46 KB)

o Basic Summary of What's Changed Since NPRM (PDF, 93 KB)

o Technical Summary of What's Changed Since NPRM (PDF, 206 KB)

o Implementation Materials

Ed Dale
Edward Dale
Senior Legislative Representative
Health and Long-Term Care Team
State Affairs Department
AARP