New Law Addresses Tenant “Death Penalty”

Pennsylvania's Governor Wolf has signed a new law intended to protect the estates of renters who die during the term of a residential lease. The law is Act 116 of 2016 (HB 447).  

It is not unusual for a residential tenant who has a full year lease to die early in the term of the lease. Many rental agreements include a clause that provides that the lease continues for its full term even in the event of the death of the tenant. This can force the deceased tenant’s estate to continue to make lease payments for the balance of a full year lease term, or to pay penalties for terminating it early.   

The new law gives estates the option to limit their financial liability for rent accruing on a residential lease after the second calendar month after a sole tenant dies. The executor or administrator of the tenant’s estate can terminate the lease upon fourteen days' written notice to the landlord on the later of:

(1)  the last day of the second calendar month that immediately follows the calendar month in which the tenant died; or

(2)  upon surrender of the rental unit and removal of all of the tenant's personal property.

The estate is not relieved of liability for rent or any other debt incurred prior to the date of termination of the lease including damages to the premises, and any expenses the landlord may incur as a direct result of the tenant's death.

The new law applies to leases entered into or extended beginning in January 2017 (the effective date of the Act).

Here is an example of how this might work:

On February 1, 2017 John enters into an agreement to rent a residential apartment for a term of one year. John is the only tenant. On March 15^th, John dies. On April 10^th, the executor of John’s estate gives the landlord written notice that the lease will terminate on April 30^th pursuant to Act 116. The executor removes all of John’s personal effects from the unit and returns the keys prior to April 30^th.

In this circumstance the landlord would not be entitled to rent for any period after April 30^th. The landlord is entitled to the rent through April 30^th and could seek reimbursement for any damages to the premises and expenses incurred due to John’s death.   

Should a similar law be enacted to protect the Elderly and Disabled?

A similar bill has been under consideration to protect seniors and the disabled who are forced to move for health reasons. 

HB 975 would allow elderly (age 60 and over) and younger disabled persons to terminate a lease prior to its expiration – without penalty - when they are required to move or are placed in a health care facility due to medical reasons. In addition, this option would apply when an elderly or disabled individual was required to move in with family members for the purpose of receiving long-term care from a home health care agency.

A physician would have to certify that the tenant, due to medical reasons, is unable to continue to live independently in the residential unit. The landlord would have to be given notice sixty days prior to the proposed early termination date.  

HB 975 was passed by the Pennsylvania House on Oct. 26, 2016 by a vote of 160-30. But it did not pass the Senate and will need to be re-introduced in the next legislation session. 

What is that NOTICE on the front of my Power of Attorney?

[The following article was written by my colleague, Elizabeth White, Certified Elder Law Attorney* of Marshall, Parker and Weber]

It is human nature to get nervous when we see the word “NOTICE”. After all, this word is usually associated with something important and of a legal nature. You may relate “NOTICE” to a negative experience, such as capital letters on top of a parking ticket, a mistakenly unpaid bill, or marking a location’s rules, like no swimming allowed.

If you have signed a financial power of attorney in Pennsylvania, you have also run across the word “NOTICE”. It is hard to ignore, as it is in all capital letters at the beginning of the power of attorney document and the paragraphs following the word “NOTICE” are also in all capital letters.

While this may make you anxious, it is there for good reasons. If you understand the notice page and what you are signing, this nervousness should turn to peace of mind.

The notice page serves as a warning to you, the person who is going to sign a financial power of attorney, that you are giving considerable power to another person to handle your financial affairs. The page is meant to put you into a frame of mind to be attentive to what you are signing, voice any questions about what it means, and consider that the person you are naming in the document to help you is trusted.

The notice page outlines the purpose of a financial power of attorney. It explains that the person signing the document (the principal) is giving broad powers to another person or persons (the agent(s)) to handle the principal’s property.

The notice describes that your agent may have certain powers over your property, such as the power to sell real or personal property, should you choose to include this power in your financial power of attorney. The powers given in a power of attorney can be broad. These powers can affect your property while you are alive, or change what is distributed through your estate plan when you pass away.

The notice explains that your agent does not have a duty to use the powers granted in the document, but if you agent does exercise those powers, he or she must act for your benefit and only in accordance with what the power of attorney document allows your agent to do.

It also states that if your agent knows what you would want in a particular situation, your agent is to act in accordance with your reasonable expectations. If your agent does not know your wishes, your agent is to act in your best interest. Your agent must always act in good faith.

The notice advises you that the power of attorney will be durable, unless otherwise stated in the document. “Durable” means that your agent can continue to act throughout your lifetime, including when you are incapacitated. This makes sense, because in most situations a power of attorney document is needed when you are incapacitated. Of course you retain the right to revoke the power of attorney, or the court can terminate your agent’s authority.

This notice is required by Pennsylvania law for Financial Powers of Attorney. It must be signed by the person executing the power of attorney. The Pennsylvania law explains that if a challenge occurs as to whether the agent had the authority to act, and the signed notice page is not included with the document, the agent has the burden to prove that the actions that he or she took were proper.

Unfortunately, powers of attorney completed using internet forms, online services, or by attorneys that do not regularly practice in the field of estate planning and elder law often do not include a proper notice page. Additionally, the notice itself informs the principal that is signing that they should seek the advice of an attorney to counsel on these powers. Unless you have the document reviewed by an experienced lawyer who is familiar with you and your goals, you may be signing a power of attorney that:

• includes powers you would not want your agent to have, or
• includes powers that you do not understand, or
• does not include essential powers that you would want your agent to have.

If you reside in Pennsylvania and have a power of attorney without a notice page, or have questions or concerns about the powers included (or not included) in your current financial power of attorney, one of the elder law attorneys at Marshall, Parker and Weber would be happy to meet with you to review your power of attorney document.

*Elizabeth White is Certified as an Elder Law Attorney by the National Elder Law Foundation

A Consumer’s Guide To Medicare’s New Rules On Doctor Pay

By Steven Findlay November 17, 2016, originally published by Kaiser Health News.

The federal government has issued final regulations that reform the way Medicare pays doctors. If the new rules achieve their intended goal, all Americans — and not just Medicare enrollees — could see improvements in the quality of their care.

The regulations, which were issued last month, stem from legislation Congress passed in April 2015 in an unusually strong bipartisan vote. The new payments will begin in 2019, but they will be based on quality measures physicians report starting in 2017.

Overall health care costs are a target of the law, too, and the rate of growth in costs could decline if the law’s mechanisms succeed. But it may be years before the government and researchers know if it is succeeding.

The previous payment formula was ineffective at motivating doctors to practice better medicine at lower cost. At the same time, it angered doctors because nearly every year it threatened to slash their reimbursements.  Congress regularly intervened to prevent that from 2002 to 2015.

Here’s a quick rundown on what the new rules mean for you.

What’s the biggest change? 

The new reimbursement system pegs part of doctors’ fees under Medicare to the quality and efficiency of the care they deliver. It also rewards doctors and other clinicians (physician assistants, nurse practitioners, etc.) who join or create larger organizations that will increasingly be paid overall fees for patient care instead of piecemeal “fee-for-service” payments.

That line item approach may work for car repairs, but in medicine it’s wasteful and promotes excessive and unnecessary care that can actually be harmful, the government contends, and most experts agree.

How will the formula work?

Starting in 2019, doctors who choose not to join larger organizations in 2017 and 2018 — which the government dubs “alternative payment models” — and also don’t participate in reporting quality measures will be penalized 4 percent of the total amount they bill Medicare. If they report a few quality measures, they avoid the penalty and could earn a small bonus. If they participate more substantially, they could earn up to a 4 percent bonus (and more in some circumstances).  Potential penalties and bonuses rise to 5 percent in 2020, 7 percent in 2021, and 9 percent in 2022 and beyond.

Doctors who join alternative payment organizations in 2017 and 2018 that meet certain criteria will get a 5 percent bonus in 2019.

Does the law change Medicare benefits? 

No. Nothing in the new law or rules changes Medicare’s benefit structure or benefits for 2017 and beyond. It also does not affect Medicare beneficiaries’ choice between private insurers’ Medicare Advantage plans and traditional Medicare, nor does it impact benefits under Medicare Part D (prescription drug coverage).

Will I pay more for care? 

In the short run, the new payment system will not affect how much you pay in Medicare premiums or out-of-pocket costs. Beyond 2023, Medicare premiums and copays could be affected by the new rules. The government’s hope is that the annual rate of rise in the cost of care for Medicare patients will be reduced. That could, in the future, translate into lower premiums. If the new system is unsuccessful at restraining costs, premiums and copays will likely rise. 

Does the new system apply to all doctors who see Medicare patients?  

Not initially. Doctors who bill Medicare less than $30,000 or have fewer than 100 Medicare patients per year are exempted in 2017 and 2018.  That’s about 30 percent of doctors who see Medicare patients. The government estimates that some 500,000 clinicians will be eligible for the financial incentive program in 2017 and that between 70,000 and 120,000 will join alternative payment organizations.

Will it be harder to find a doctor who accepts Medicare? 

No. Congress killed the old payment system because some doctors threatened to stop seeing Medicare patients if fees were cut substantially, although few did. The new payment formula, while complex and requiring doctors to adapt, carries much less risk of Medicare dropouts by doctors.

How will actual care be affected? 

Under the new system, doctors will be rewarded if they improve the way they track and manage patients over time; work in teams to make sure patients get the best, most appropriate treatments; use electronic health records; and prioritize wellness and prevention.

Such reforms are being pushed broadly in medicine today, and studies indicate they can improve treatment and keep people healthy — although there’s not universal agreement on which changes and techniques work best.

Paying doctors and medical organizations based on the outcomes of care carries the risk that doctors might avoid very sick and expensive patients. There’s debate over whether the new payment formula adequately limits that risk. Most experts agree, though, that the risk is minimal in the early years of the new program.

How will doctors’ performance and quality of care be measured?

Doctors will get one overall grade and rating. Call it a Grade Point Average (GPA) based on four categories: quality-of-care; practice improvement; adoption and use of electronic health records; and cost (this assessment starts in 2018). Quality of care will represent 60 percent of their score.

Their scores, along with reviews of their Medicare bills and patterns, will dictate whether they get a bonus, no change in payment, or a penalty.

Will I have access to doctors’ grades and ratings? 

Yes. The results will be posted on the website Physician Compare. This site, mandated by the Affordable Care Act, already has some quality ratings for physician groups.

When and in what form the information based on the new payment system will be available online is not yet clear, however. In response to a question, the Centers for Medicare and Medicaid Services, which is administering the new payment system, replied: “We will use statistical and consumer testing for purposes of determining how and where such data will be reported on Physician Compare.”

How will the law affect the health system for people not in Medicare? 

The steps to improve care and constrain cost growth in Medicare is in sync with similar actions in the private sector — by employers, insurers and large health systems. Financial incentives and other rewards, for example, have become common. Plus, almost all doctors who see Medicare patients also see privately insured patients. Thus, the government’s actions are expected to have a spillover effect to medical care for all adults.

Will the Trump administration change or delay MACRA?

It’s hard to say right now. Trump said repeatedly on the campaign trail that he would preserve and strengthen Medicare. Regulations like MACRA that have been through extensive public comment and finalized are not easy to rescind or alter. In addition, Congress passed MACRA with strong bipartisan support. It’s probably unlikely that Trump would see it as a priority to alter MACRA before it begins to be implemented in 2017.

Medicaid Caps may Hurt Seniors and the Disabled

Medicaid is America’s health care program for its poorest and most vulnerable citizens. Medicaid provides coverage to nearly 1 in 4 Americans at an annual cost to taxpayers of more than $500 billion. The program, established in 1965, is jointly funded by the federal government and each state. A majority of the funding is provided by the federal government.

Medicaid is the largest source of funding for the long-term care services needed by Pennsylvania’s seniors and younger disabled population. A majority of Pennsylvania’s Medicaid spending is paid for services to the elderly and disabled. In 2011 elderly people and people with disabilities accounted for 72% of total Medicaid program costs in Pennsylvania.

With the election of Donald Trump it has become much more likely that federal Medicaid funding to the states will be capped in some fashion. That means that Pennsylvania will have less money available to provide for its Medicaid population, such as seniors who reside in nursing homes or receive Medicaid funded home care or other services. The change could have a tremendous impact on older adults in our Commonwealth and across the nation.

Both President-Elect Trump and House Speaker Paul Ryan have expressed strong support for placing new limits on federal Medicaid payments to the states.

The following article about potential changes to Medicaid was written by Phil Galewitz for Kaiser Health News and is republished with permission.

Millions Could Lose Medicaid Coverage Under Trump Plan

By Phil Galewitz November 9, 2016

Millions of low-income Americans on Medicaid could lose their health coverage if President-elect Donald Trump and a Republican-controlled Congress follow through on GOP proposals to cut spending in the state-federal insurance program.

The biggest risk for Medicaid beneficiaries comes from pledges by Trump and other Republicans to repeal the Affordable Care Act, which provided federal funding to states to expand Medicaid eligibility starting in 2014. Thirty-one states and Washington, D.C. did so, adding 15.7 million people to the program, according to the government. About 73 million are now enrolled in Medicaid — about half are children.

Reducing the number of people in Medicaid while ensuring that only the most needy — such as children and pregnant women — remain eligible will be a goal for Trump and the new Congress, said Brian Blase, senior research fellow at the conservative Mercatus Center at George Mason University in Virginia.

“If we do not have fewer people in Medicaid in four years, then we have not reformed health policy in a good direction,” he said.

But there are obstacles to the Republicans’ plans. Medicaid, one of President Lyndon Johnson’s “Great Society” domestic programs that was created in 1965, is the nation’s main health insurance program for low-income people.

Overhauling it is politically difficult because of the potential harm to recipients as well as the financial consequences to states, hospitals, doctors and other health providers, who might not get paid for their services if patients don’t have coverage. Total Medicaid spending was $532 billion in fiscal 2015, with about 62 percent funded by the federal government.

One major change endorsed by both Trump and House Speaker Paul Ryan (R-Wis.) would transform Medicaid from an entitlement program into a block grant program.

Here’s the difference. In an entitlement program, coverage is guaranteed for everyone who’s eligible. The federal government’s commitment to help states cover costs is open-ended. The states’ obligation is to cover certain groups of people and to provide specific benefits. Children and pregnant women who meet specific income criteria must be covered, for example.

That formula would change if federal funds flow to states through block grants. States would have more flexibility to run their Medicaid programs as they wish — including cutting benefits and eligibility. And proponents say it would allow the federal government to spend less on Medicaid and make states responsible for covering costs beyond their federal allotments.

Turning Medicaid into a block grant program has been discussed for more than 25 years, but the idea has always met resistance from some states, health providers, health care advocates and Democrats. Even with a Republican majority in Congress and Trump in the White House, the plan would still face an uphill legislative battle.

The federal government rarely shifts power to the states and not all states want to be at increased financial risk for the program.

“Medicaid block grants face a very uncertain future,” said Joel Cantor, director of the Center for State Health Policy at Rutgers University in New Jersey.

Another option to redefine Medicaid funding, similar to a block grant, is known as a per capita cap. States would be given a set amount of money per enrollee, which would increase each year but critics fear likely not keep up with rising health expenses. That method would help states better deal with growing enrollment because funding would rise, too.

Even without help from Congress, Trump’s administration could change Medicaid using the executive branch’s power to approve states’ requests for waivers from federal rules. That could allow Trump to approve changes proposed by Republican governors that the Obama administration has rejected, including work requirements for Medicaid enrollees and monthly premiums and other cost-sharing.

Trump could also end some waivers that expanded Medicaid and sent billions in new federal funding to some states that transformed care.

Any congressional changes to Medicaid next year would likely include negotiations about the Children’s Health Insurance Program, another federal-state program that provides coverage to youngsters whose families are slightly over the Medicaid eligibility. The program expires if not reauthorized by Sept. 30, 2017. According to the Kaiser Family Foundation, about 8 million children get coverage through CHIP, which has had Republican and Democratic support.

After Trump is in office, he may find it’s harder than he realized to repeal Obamacare and tinker with Medicaid because cutting off coverage for millions of people could bring plenty of political fallout, said Joan Alker, executive director of the Center for Children and Families at Georgetown University.

Republican Gov. Matt Bevin of Kentucky took a similar tack last year, she observed, running against Obamacare and vowing in his campaign to eliminate the expansion. He has since proposed major changes to Medicaid, but he has not yet moved to kill the expansion.

Still, Alker said Trump’s win puts the block grant idea front and center in January. And an agreement to do it could give states flexibility to make cuts in federally required benefits, such as health screenings for infants and children.

“I would be very concerned about what could happen,” Alker said.

[Jeff’s ending  notes:

For more on Medicaid Block Grants see my earlier post: Making Sense of Medicaid Block Grant Proposals]

Here is a link to Speaker Paul Ryan’s Health care proposals (Medicaid starts on page 23) http://abetterway.speaker.gov/_assets/pdf/ABetterWay-HealthCare-PolicyPaper.pdf ]
See also:

What Would Block Grants or Limits on Per Capita Spending Mean for Medicaid? (The Commonwealth Fund, November 2016)

Advance Directives and the Care Act

[The following article was written by my colleague, Elizabeth White, Certified Elder Law Attorney* of Marshall, Parker and Weber] 

Many of us like to believe that we could not have a health crisis. However, statistics from the Centers for Disease Control prove otherwise. Every year in the United States 525,000 people will have their first heart attack and 620,000 people will have their first stroke.[1] While none of us can predict the future, we can use these numbers to help prepare ourselves for the possibility of suddenly requiring health care.

Perhaps the most important aspect of you ensuring that are ready in a crisis is to name a person to help you with health care decisions and tasks ahead of time.

The legal document that allows you to name a person or persons to assist you with health care decisions is the health care power of attorney. This document is also referred to as an advance directive. A second component of an advance directive document can outline your philosophy as to end of life treatment. The writing of your wishes regarding end of life medical treatment is often referred to as a living will.

The trusted person named in your health care power of attorney is called your agent. If you cannot communicate your agent will step into your shoes and make heath care decisions based on what he or she understands to be what you would want. For example, consenting to a surgery or admitting or discharging you from a hospital.

Signing an advance directive can help avoid family conflict and the need for a court process called a guardianship. Guardianships are generally time consuming and expensive.

Another protection available to make certain that you receive the best care possible in the event of a health crisis is found in a more recent law. The Pennsylvania Caregiver Advise, Record and Enable Act (CARE Act) was signed into law on April 20, 2016, and is set to go into effect one year from that date (April 20, 2017).

The CARE Act allows you to designate a family member or other lay caregiver to assist you after a hospital discharge. The lay caregiver, with your consent, can have access to your medical records.

The CARE Act also gives your designated lay caregiver(s) an opportunity to ask questions and address concerns proactively, so they can provide with you better care at home and hopefully avoid the need for re-admission to the hospital. The lay caregiver will get instructions for after-hospital care tasks, and any necessary training needed before the lay caregiver takes on his or her caregiver role for you outside of the hospital.

If you have planned in advance of a health care crisis, including discussing your wishes with your trusted family members and executing an advance directive naming those that you trust to make those decisions, your family and caregivers will have the information they need to best handle any stressful crisis situation.

                                                                                                                                     

*Certified Elder Law Attorney by the National Elder Law Foundation under authorization of the Pennsylvania Supreme Court

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[1] “Centers for Disease Control and Prevention Heart Disease Facts” http://www.cdc.gov/heartdisease/facts.htm, (August 20, 2015) and “Center for Disease Control and Prevention Stroke Facts” http://www.cdc.gov/stroke/facts.htm, (March 24, 2015).