The ABLE Act and Nursing Home Arbitration Provisions – Update

A photo by Jonathan Simcoe. earlier article discussed the ABLE Act that was signed into law in 2014, which permits disabled individuals to create savings accounts and set aside monies for their needs without disqualifying them from public benefits.  Three different pieces of legislation were then proposed in the House to modify some of the provisions of the ABLE Act.  Corresponding legislation was introduced in the Senate and referred to the U.S. Senate Committee on Finance.  The Senate Finance Committee has approved two of the bills, but the third bill, which would raise the age of eligibility to 46 from 26, was not discussed.  Many groups are upset that the ABLE Age Adjustment Act was omitted and may oppose all of the bills in an effort to have the age limitation bill revisited.  The bills still need to wind their way through the procedural process, but certainly there are various negotiations occurring behind the scenes and hopefully resolution is on the horizon.  In the meantime, implementation of the ABLE Act is in full force around the country.  #specialneeds #ABLEact #estateplanning @bgnthebgn

In addition, as was predicted, a battle has erupted between the nursing home industry and the Centers for Medicare and Medicaid Services (“CMS”) over the final rule issued by CMS that bans the use of binding pre-dispute arbitration agreements by nursing homes that accept Medicare and Medicaid patients.  The American Health Care Association along with four long-term care providers filed suit against the Health and Human Services Secretary and CMS arguing that the agencies overstepped their authority in issuing the rule.  They are seeking declaratory and injunctive relief to prevent the rule from going into effect on November 28th.  Many will follow this case closely as the final rule, as issued, will have quite the impact on the nursing home industry, the patients and their families if it takes effect.  Thus, stay tuned for further updates as the lawsuit moves forward.   #elderlaw #elderabuse #nursinghome #arbitrationbanned @bgnthebgn

District of Columbia Considers Death with Dignity Act

flowers-3The District of Columbia is considering enacting the Death with Dignity Act (the “Act”) that would allow terminally ill individuals with six months or less to live the ability to receive a lethal dose of medication and end their life.  Several procedural steps lie ahead for the Act now that the D.C. Council has voted to place the Act on the legislative agenda for an upcoming meeting.  However, it is unclear whether there is sufficient support for the Act to be made into law.  Arguments in favor of the Act revolve around giving an individual control over how and when they choose to die, but advocates against the Act are concerned that individuals’ lives will be prematurely terminated. 

The issue once again raises the importance of planning.  Planning for incapacity and planning for death.   Both sides of the death with dignity argument seem to have a common thread involving control, which is exactly what planning gives you.  Planning gives you control over who is in charge of your medical decisions when you are not able to make those decisions. Planning gives you control of whether you want life-prolonging procedures when doctors have certified that nothing more can be done except provide comfort care.  Planning gives you control of how you want to be remembered in those final moments.  Planning gives your family members peace of mind to know that they are truly abiding by your wishes, which in turn may make them feel as if they are in control of the situation.  Planning gives your family time to prepare for a life without you in it and to try to control the emotional turmoil that realization creates.  Ultimately, planning is a gift to yourself to know that that particular item on a lengthy checklist can be crossed off so that you can enjoy life knowing that your end of life is in the best order you can create.  So, regardless of which side of the death with dignity argument you fall, think of the planning that can be done to control your death with dignity. #endoflife #estateplanning #advancedirective #livingwill @deathwdignity @NHDD @bgnthebgn

Use of Pre-Dispute Arbitration Agreements Restricted in Nursing Home Admissions Agreements

man-in-coffee-houseThe Centers for Medicare and Medicaid Services (“CMS”) recently issued a final rule banning the use of binding pre-dispute arbitration agreements by nursing homes that accept Medicare and Medicaid patients.  Such arbitration clauses are typically found in the admissions agreements between a new resident (or their family) and the nursing home, but are very often overlooked.  The result of this new rule is that families who have an issue with a nursing home regarding care, abuse, and the like, can now sue in court to have their case heard versus having to go through a binding arbitration process. 

The original proposed rule only required nursing homes to explain the arbitration agreement to new residents and obtain an acknowledgement that they understood.  The final rule is the result of many comments on the proposed rule that favored an outright ban on such arbitration agreements.  The nursing home industry has stated that the arbitration agreements have kept costs down and the new rule will undoubtedly increase costs and force closures of some facilities.  Moreover, there is an argument that CMS has overstepped its authority in issuing such a rule and we may see the nursing home industry fight the implementation of the rule currently scheduled to take effect on November 28th.  The new rule will only apply to future admissions agreements and not to existing contracts, but stay tuned to see whether a battle erupts between the nursing home industry and CMS.  #elderlaw #elderabuse #nursinghome #arbitrationbanned @bgnthebgn

October is National Special Needs Law Month

children-hugThe National Academy of Elder Law Attorneys (“NAELA”) has designated October to be National Special Needs Law Month in an effort to educate individuals with disabilities, families and caregivers about what is encompassed in the realm of special needs.  For example, topics such as guardianship, conservatorship, powers of attorney, Medicare, Medicaid and special education will be addressed by professional advisors throughout the country.  Local resources such as Commonwealth Community Trust and The Arc of Northern Virginia and more national resources such as Special Needs Alliance may hold special awareness events and have resources available for review.  Designating a month is an opportunity for individuals with disabilities, families and caregivers to develop their knowledge of available options and emphasizes the importance of speaking with the appropriate professional advisors.  Below is a selection of earlier articles discussing a few topics involving special needs planning.  #specialneeds #specialneedsplanning #estateplanning @bgnthebgn

The Able Act – An Additional Resource for Families and Advisors

The Able Act – Proposed Legislation Will Modify Certain Provisions

How Divorce Can Impact Your Estate Plan – Special Needs

Changes to Virginia Laws Impacting Seniors and the Disabled

Changes to Maryland Laws Impacting Seniors and the Disabled

Special Needs Trust Fairness Act