Although it may be difficult or uncomfortable to discuss the type of health care you wish to receive should you be impacted by an accident, a terminal illness, or circumstances that may warrant skilled nursing care, nevertheless it's important to make your wishes known while still healthy and independent. When a person is unable to give clear direction about his or her care because of illness or incapacity, the circumstances for the patient and family are even more difficult. Here are five ways to increase the likelihood that your wishes will be met.

1. Create a Health Care Proxy.  If you are unable to make health care decisions for yourself, who will do that for you?  A Health Care Proxy is the legal document we use in Massachusetts to appoint a person (your Health Care Agent) to make health care decisions for you if your doctor determines that you are unable to do so.   This is sometimes called an Advance Directive.  If you do not have a Health Care Proxy and your doctor determines that you are unable to make decisions about your treatment, a legal guardian will need to be appointed by the Court to make those decisions for you. A guardianship proceeding is time consuming and expensive, and gives you little or no control over who the Court names to make health care decisions for you.  The best way to ensure that your wishes are carried out is to create a Health Care Proxy naming a person you trust to make medical decisions on your behalf.  When you create your Health Care Proxy, make sure you give a copy to your doctor and your Health Care Agent.  A Health Care Proxy can be prepared for you by an attorney, or forms are available on the website of the Massachusetts Medical Society (www.massmed.org).

2. Sign a HIPAA Authorization. A HIPAA Authorization lists the people who are authorized to speak with your caregivers about your health and your health care.  The people listed are given permission to receive information but they are not decision makers.  Any decision-making about your health care is done only by the Health Care Agent you have named in your Health Care Proxy.  Signing a HIPAA Authorization will ensure that friends or family members you want to stay fully informed about your medical condition will have the legal ability to do that, so they can assist you or provide input to your Health Care Agent if necessary.

3. Write a Living Will or other Instructions.  A Living Will is a document that specifically addresses life-sustaining treatment, and typically states a person's wish to not be kept alive by artificial means if they have an incurable condition and are not expected to recover.  In Massachusetts, Living Wills serve as an expression of your wishes that your Health Care Agent can refer to when making health care decisions for you.  If you do not want your life to be prolonged by artificial means, it is important that you let your Health Care Agent know how you feel.  A Living Will is a simple and effective way to do this. 

4. Have a Discussion with your Doctor. In order to give appropriate direction about your wishes you must first understand the situations you may be faced with, the types of decisions that must be made by your health care decision-makers, and your treatment options.  A conversation with your doctor is a good way to start thinking about these issues and making decisions that are right for you given your age and health.  On the subject of end-of-life planning, Massachusetts has begun a public education campaign about the need for advance end-of-life care planning, including MOLST (Medical Orders for Life-Sustaining Treatment).   Medical staff are being trained on discussing these issues with patients and assisting them to complete a MOLST form.  This form translates patient preferences about certain medical treatments into formal medical orders that can be honored by health professionals across various care settings (i.e. home, hospital, nursing home).

Take the time to think about the type of health care you would want and where you would want to receive it, speak to your family and your doctor, and put the appropriate legal documents in place.  If you take these steps now, while you are able to do so, you will greatly increase the chances that you will receive the type of care you want where you want it, which is what all of us hope for and deserve.  For more information specific to end-of-life planning, see www.theconversationproject.org and www.molst-ma.org.

By: Attorney Suzanne R. Sayward    

Medicare Part A benefits will cover up to 100 days of care in a skilled nursing facility (nursing home) if the patient enters the nursing home after a hospital stay of three days or more.  The first 20 days are covered in full, and the next 80 days are covered in part.  Most Medicare supplemental health insurance plans (i.e. Medex, Managed Blue, Tufts, etc.) provide coverage for at least some portion of the costs of the days which are not covered in full by Medicare (days 21-100).  For seniors who have Medicare and a supplemental health insurance plan, the expectation is often that they are entitled to 100 days of coverage if nursing home care is needed.  Most have been in for an unpleasant surprise when they tried to collect on this coverage. 

For years, Medicare illegally denied coverage of skilled services to individuals on the basis of the so-called "Improvement Standard."  Application of the Improvement Standard meant that individuals with chronic conditions such as Alzheimer's, Parkinson's, and Multiple Sclerosis were denied Medicare coverage for skilled care because the care was not going to make them better.

In January of 2011, the Center for Medicare Advocacy and Vermont Legal Aid filed a lawsuit challenging Medicare's Improvement Standard (Jimmo v. Sebelius).  The settlement agreement, approved by the court in January 2013, prevents Medicare from denying coverage for skilled nursing care to individuals just because their underlying condition will not improve.  The court agreed with the Plaintiffs' position that the law is intended to provide coverage for skilled nursing care to individuals who need such services to maintain their current level of function or to prevent additional decline. 

As part of the Settlement Agreement, the Centers for Medicare and Medicaid Services (CMS) must develop a program to educate those who make eligibility determinations to ensure that patients are not denied coverage for skilled care because their underlying conditions will not improve.  The standard for coverage of skilled care to maintain services is in effect immediately.  If you are a Medicare beneficiary and you think that you have been wrongly denied skilled nursing care based on the Improvement Standard, you should appeal that denial to obtain the coverage to which you are entitled. Visit the Center for Medicare Advocacy's website (http://www.medicareadvocacy.org/medicare-info/improvement-standard-2/) to learn more about this and to access self-help materials for appealing a denial of coverage based on the Improvement Standard.

Samuel Financial, Inc. is located at 858 Washington St. Dedham, MA 02026 and can be reached at (781)461-6886.  Securities and advisory services offered through Commonwealth Financial Network, member FINRA/SIPC, a registered investment adviser. www.samuelfinancial.com

Staff News

In addition to assisting clients, Attorneys Sayward and Baler have been busy keeping up with the many changes that continue to occur in  their practice areas of estate planning and elder law.

In February, Attorney Baler attended the Massachusetts Chapter of the National Academy of Elder Law Attorneys' (MassNAELA's) annual Multi-Site Breakfast Meeting, which discussed several  pertinent topics in elder law, including recent legislative changes to the long-term care insurance laws in Massachusetts, challenges to the Medicare "improvement standard" (which Attorney Sayward discusses in more detail in her article in this newsletter), nursing home transfers, and arbitration provisions in nursing home admissions agreements.  Attorneys Sayward and Baler also attended a meeting of the Massachusetts Forum of Estate Planning Attorneys, which discussed the tax aspects of the fiscal cliff legislation, otherwise known as the American Taxpayer Relief Act (ATRA) of 2012.

In March, Attorneys Sayward and Baler attended the day-long Suffolk University Elder Law Institute, an annual program jointly sponsored by Suffolk University Law School and MassNAELA.  This year's program was titled "The A-Z's of Real Property Revisited," and focused on the impact of changes in ownership of real property in the course of estate planning or long-term care planning, with particular focus on drafting considerations, tax consequences, conveyances by fiduciaries, and title considerations.  Also in March, Attorney Sayward attended an American Bankers Association telephone briefing on "Planning for the Elderly and Incapacitated."