As people approach age 65, they should be thinking about their Medicare enrollment choices, including whether to sign up for traditional Medicare or with a Medicare Advantage plan, and if so, which one.  But it turns out that some Medicare-age people are having these important decisions made for them, often without their knowledge.

Before they become eligible for Medicare, many Americans are covered by a commercial or a Medicaid health care plan run by an insurance company. These insurers often also operate Medicare Advantage plans, which are the privately run managed-care alternative to traditional Medicare. Under a little-known process authorized by the federal government, insurers can shift their beneficiaries who are turning 65 to their own Medicare Advantage plan.  It’s called “seamless conversion,” and all it requires is that the health plan obtain Medicare’s prior approval and send a letter to the beneficiary explaining the new coverage, which takes effect unless the member opts out within 60 days.

The idea is to preserve continuity for those who want to stay with the same company, but some seniors are unaware that they have been signed up, in part due to the flood of mail they get from insurers around age 65.  In a recent Kaiser Health News expose, reporter Susan Jaffe related the stories of several new Medicare beneficiaries who were shocked to learn that they had been enrolled in a Medicare Advantage plan.  One, Judy Hanttula of Carlsbad, New Mexicio, signed up for traditional Medicare and then ignored the subsequent mail, which apparently included the notice from her insurer telling her that it had automatically enrolled her in its Medicare Advantage plan.

“I felt like I had insured myself properly with Medicare,” she said. “So I quit paying attention to the mail.”

Unfortuantely for Ms. Hanttula, before she became aware of the automatic assignment to a Medicare Advantage plan, she had surgery that her new plan subsequently refused to cover, leaving her with a $16,622 bill.  Eventually, with the help of David Lipschutz, a senior attorney at the Center for Medicare Advocacy in Washington, Medicare officials disenrolled Ms. Hanttula from her unwanted Medicare Advantage plan, restored her traditional Medicare coverage and agreed to cover her medical bills, reports Jaffe.

Medicare officials won’t say which insurance companies have sought or received approval to seamlessly convert their members to their own Medicare Advantage plans, but Jaffe reports that among the insurers that are already automically enrolling members into Medicare plans in at least some parts of the country include Aetna and United Healthcare, and that Humana, he nation’s second largest Medicare Advantage provider, has asked for federal permission to also do auto-enrollment.

Medicare officials are developing procedures for seamless conversion requests and implementation, but in response to complaints from her contituents and health care advocates, Rep. Jan Schakowsky (D-Ill.) wants to build in stronger consumer protections. 

In the meantime, those enrolled in a health plan offered by a Medicare Advantage organization when they become eligible for Medicare should “be attentive,” advises attorney Lipschutz of the Center for Medicare Advocacy.  “Be on the lookout for written notice regarding conversion and carefully consider whether to opt-out of the [Medicare Advantage] plan.”

For a Center for Medicare Advocacy case study on the seamless conversion issue. click here.

To read the Kaiser Health News article, click here.

While it is illegal for a nursing home to discriminate against a Medicaid recipient, it still happens. To prevent such discrimination, nursing home residents and their families need to know their rights.

The potential for discrimination arises because Medicaid pays nursing homes less than the facilities receive from residents who pay privately with their own funds and less than Medicare pays. Nursing homes are not required to accept any Medicaid patients, but Medicaid payments are a steady guaranteed payment, so many nursing homes agree to accept Medicaid recipients.

When a nursing home agrees to take Medicaid payments, it also agrees not to discriminate against residents based on how they are paying. Medicaid recipients are entitled to the same quality of care as other residents. A nursing home cannot evict residents solely because they qualified for Medicaid.

Unfortunately, discrimination against Medicaid patients does occur, and the discrimination can take different forms. The nursing home may refuse to accept a Medicaid recipient or may require that a resident pay privately for a certain period of time before applying for Medicaid. When a resident switches from Medicare or private-pay to Medicaid payments, the nursing home may transfer the resident to a less desirable room or claim that it doesn’t have any Medicaid beds.

There is at least one way that nursing homes can treat Medicaid recipients differently, however. Nursing homes are allowed to switch residents who were privately paying for a single room to a shared room once they qualify for Medicaid. In addition, the nursing home is not required to cover personal and comfort care items, such as a telephone or television. In some states families are allowed to pay the difference to get a private room or the care item. Other states do not allow any supplementation.

If you feel you have been discriminated against by a nursing home, contact your state’s long-term care ombudsman or your attorney.

For a guide to the 20 common nursing home problems, including discrimination against Medicaid recipients, click here.

Photo: Rich Legg

Saying that there has been “undue influence” is often used as a reason to contest a will or estate plan, but what does it mean?

Undue influence occurs when someone exerts pressure on an individual, causing that individual to act contrary to his or her wishes and to the benefit of the influencer or the influencer’s friends. The pressure can take the form of deception, harassment, threats, or isolation. Often the influencer separates the individual from their loved ones in order to coerce. The elderly and infirm are usually more susceptible to undue influence.

To prove a loved one was subject to undue influence in drafting an estate plan, you have to show that the loved one disposed of his or her property in a way that was unexpected under the circumstances, that he or she is susceptible to undue influence (because of illness, age, frailty, or a special relationship with the influencer), and that the person who exerted the influence had the opportunity to do so. Generally, the burden of proving undue influence is on the person asserting undue influence. However, if the alleged influencer had a fiduciary relationship with your loved one, the burden may be on the influencer to prove that there was no undue influence. People who have a fiduciary relationship can include a child, a spouse, or an agent under a power of attorney.

When drawing up a will or estate plan, it is important to avoid even the appearance of undue influence. For example, if you are planning on leaving everything to your daughter who is also your primary caregiver, your other children may argue that your daughter took advantage of her position to influence you. To avoid the appearance of undue influence, do not involve any family members who are inheriting under your will in drafting your will. Family members should not be present when you discuss the will with your attorney or when you sign it. To be totally safe, family members shouldn’t even drive or accompany you to the attorney’s office. You can also get a formal assessment of your mental capabilities done by a medical professional before you draft estate planning documents.

Although voting is the hallmark of a democracy, it isn’t easy if you are in a long-term care facility. Nursing home and other long-term care facility residents face several challenges to voting, from registering to vote to actually casting a ballot.

When you move into a nursing home or assisted living facility, your address changes, which means you probably need to register to vote based on the new address. You can register in person, by mail, or, in some states, online. To register in person, visit your local elections office or your local department of motor vehicles. To find out where to register in your state, go here: http://www.eac.gov/voter_resources/contact_your_state.aspx.  Alternatively, there is a national voter registration application that you can use to register by mail. The form includes state-specific instructions. Finally, more than 30 states have online registration.

Once you are registered, you still need to physically cast your ballot. This can be difficult if you have trouble leaving your facility. There are several methods that nursing home residents may be able to use to vote. All states allow absentee voting, but the requirements are different in each state. Some states require an excuse –- such as a physical disability — to vote absentee. In many states being at least aged 60 to 65 (depending on the state), is a reason to qualify for an absentee ballot.

Twenty-three states allow mobile polling, which is supervised absentee voting conducted in the residential facility. Mobile polling is often based on demand, so to get mobile polling in your facility, contact your local elections office.

If it is difficult for you to get to the polls on Election Day, 37 states offer early voting. Early voting allows voters to visit an election office and vote in person without providing an excuse. This can give you the flexibility to vote when it works for you.

For more information about your right to vote while in long-term care, the National Consumer Voice for Quality Long-Term Care has fact sheets on How to Register to Vote and How to Cast a Vote.

The federal government recently extended minimum wage and overtime protections to most home health care workers. If you are hiring a caregiver for yourself or an elderly loved one, you need to become familiar with the rules, even if the paid caregiver is a family member.

Under the Fair Labor Standards Act (FLSA), employers who hire casual babysitters and domestic service workers to provide “companionship services” to elderly persons or persons with illnesses, injuries, or disabilities are not required to pay the minimum wage or provide overtime pay. Therefore, if you directly hire a caregiver whose job it is to solely keep the elderly person company (for example, taking the client for walks, playing games with the client, reading, or accompanying the client on errands), then FLSA protections do not apply.

However, the companionship services exemption is not applicable when the caregiver spends more than 20 percent of his or her workweek performing “care services.” Care services are defined as assisting the client with activities of daily living, including dressing, feeding, bathing, toileting, transportation, light housework, managing finances, taking medication, and arranging medical care. Caregivers who perform tasks for the entire household and caregivers who perform medical services are also not covered under the companionship exemption. In addition, if a home health care agency is the caregiver’s employer, the home health care agency cannot ever claim the companionship exemption.

The rules for live-in caregivers are slightly different. If you hire the live-in caregiver directly, you must pay the caregiver minimum wage, but you are not required to pay overtime. Third-party employers (such as health care agencies) that hire live-in workers are required to pay overtime. Under the FLSA, to be a “live-in” home care worker, the worker must either live at the client’s home full-time or spend at least 120 hours or five consecutive days or nights in the client’s home per week. Caregivers who live with clients are not necessarily working the entire time they are at the house, and employers do not need to pay for sleep time, mealtime, or other off-duty time.

You can hire family members as care workers and the same rules apply to them as to non-family care providers. If you hire family members, you must pay them overtime and minimum wage as long as they are spending more than 20 percent of their time on care services. However, it is very important to have a written plan of care detailing the family member’s working hours and obligations, so it is clear what is work time and what is family time.

The federal minimum wage in 2016 is $7.25 per hour, but states may have higher rates. Employees who are entitled to overtime pay can receive one and a half times their normal rate for every hour worked over 40 hours a week.

Regardless of whom you hire to provide care for yourself or your loved one, you should have a written caregiver contract detailing the caregiver’s rights and responsibilities. Contact your attorney to make sure you are following the law when it comes to hiring a caregiver.

The Department of Labor has produced a “Paying Minimum Wage and Overtime to Home Care Workers” guide for families on the FLSA requirements.

In recent years a number of non-lawyers have started businesses offering Medicaid planning services to seniors. While using one of these services may be cheaper than hiring a lawyer, the overall costs may be far greater.

If you use a non-lawyer to do Medicaid planning, the person offering services may not have any legal knowledge or training. Bad advice can lead seniors to purchase products or take actions that won’t help them qualify for Medicaid and may actually make it more difficult. The consequences of taking bad advice can include the denial of benefits, a Medicaid penalty period, or tax liability.

As a result of problems that have arisen from non-lawyers offering Medicaid planning services, a few states (Florida, Ohio, New Jersey, and Tennessee) have issued regulations or guidelines providing that Medicaid planning by non-lawyers will be considered the unauthorized practice of law. For example, in Florida, a non-lawyer may not render legal advice regarding qualifying for Medicaid benefits, draft a personal service contract, determine the need for or execute an income trust, or sell income trust kits. In Florida the unlicensed practice of law is a felony that is punishable by up to five years in prison, while in Ohio practicing law without a license is subject to civil injunction, civil contempt, and civil fine

Applying for Medicaid is a highly technical and complex process. A lawyer knowledgeable about Medicaid law in the applicant’s state can help applicants navigate this process. An attorney may be able to help your family find significant financial savings or better care for you or your loved one. This may involve the use of trusts, transfers of assets, purchase of annuities or increased income and resource allowances for the healthy spouse.

In many states, seniors have the right to decline jury duty based on their age. But the age limits and rules vary by state and by type of court, so if you are summoned for jury duty, check with the court to determine if you are exempt.

The majority of states have a rule in place that allows individuals over a certain age to choose not to serve on a jury if called. How this works varies by state and by court. Some states allow anyone over a certain age to be permanently exempted; other states allow seniors to be excused from serving if they are called. Some states require notice in writing; other states have a box the senior can check on the jury summons form. The ages at which seniors can be exempted or excused are 65 (Mississippi and South Carolina), 70 (Alabama, Alaska, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, Nevada, Oklahoma, Oregon, Texas, Virginia, and West Virginia), 72 (North Carolina and Wyoming), 75 (Arizona, Indiana, New Jersey, New Mexico, New York, Ohio, and Pennsylvania), and 80 (Hawaii and South Dakota).

Some states have more complicated rules regarding seniors and jury duty. In Nevada, for example, everyone over age 65 who lives 65 miles or more away from the court is exempt from serving on a jury. Once you reach age 70 in Nevada, you are exempt from serving on a jury no matter where you live. In California, individuals with a permanent health problem can be exempted from jury duty, but if you are 70 years or older, you don’t need a doctor’s verification of the health problem.

Each of the federal district courts has its own rules about jury service. Many federal courts offer excuses from service, on individual request, to designated groups, including people over age 70.