Monday, June 19, 2017

Your Hospital Discharge: The Fast Appeal

You are notified that you will be discharged from the hospital this afternoon. But you are concerned that your discharge is taking place too soon. You think you need additional in-patient care in the hospital. What can you do? Can you stop your scheduled discharge?
Hospital discharges don’t always take place at the ideal time. You can be notified that you are being discharged before you think you are ready. If you find yourself in this situation Medicare provides a relatively simple appeal process for hospitalized beneficiaries to use to delay their discharge while its appropriateness is reviewed.
If you think you or your loved one is not ready for discharge, you can file an expedited “fast” appeal. The hospital is required to give you a notice that contains the information you need to file this appeal. The notice you should receive is called the ”Important Message from Medicare” [IM] notice. The IM form was updated in June 2017 and a copy is available here.
You and your representative should read your IM notice carefully. It tells you that you have the right to appeal your planned discharge if you have concerns about it.  The appeal will involve a review of your case by a Quality Improvement Organization (QIO).  The QIO (also called a BFCC-QIO) is an independent outside reviewer hired by Medicare to look at your case to decide whether you are ready to leave the hospital.
If you want to appeal, you must contact the QIO no later than your planned discharge date and before you leave the hospital. If you do this, you will not have to pay for the services you receive during the fast appeal (except for charges like copays and deductibles).
Page 2 of the IM notice form contains step by step instructions for calling the QIO and filing an appeal.
[This is one of a series of articles I have written on the topic of being discharged from a hospital. My other recent articles on this subject are: Preparing for your Hospital Discharge; and  Preparing for your hospital discharge (Part 2)]
Medicare regulations require that the IM form be given to hospital in-patients at or near the time of their admission, but no longer than 2 calendar days following admission.  If you don’t receive it, ask for it. If you still don’t receive it, the Medicare website has the information you need to file a fast appeal for yourself or your hospitalized loved one.
After you file your fast appeal, you should receive a detailed notice from the hospital (or your Medicare Advantage or other Medicare managed care plan if you belong to one) that explains the reasons they think you are ready to be discharged. The QIO will ask for your opinion. You (or your representative) need to be available to speak with the QIO, if requested. You (or your representative) may give the QIO a written statement, but you are not required to do so.
The QIO will notify you of its decision within 1 day after it receives all necessary information. If the QIO finds that you are not ready to be discharged, Medicare will continue to cover your hospital services.  If the QIO finds you are ready to be discharged, Medicare will continue to cover your services only until noon of the day after the QIO notifies you of its decision
The fast appeal is only the initial step in a potential series of appeals you can file. But the fast appeal may be only step you will need to take. At the very least, it will buy you some time at minimal or no cost to you. Don’t be shy about using this process – getting a QIO review of your discharge is your right.
As good brief overview of the fast appeal process is available here.
Here are a couple of other points to note about fast appeals:
  • A second follow-up copy of the IM notice is supposed to be given to you no more than 2 calendar days prior to your discharge. However, the follow-up notice may not be required if the time between your admission and the proposed discharge is short.
  • You QIO’s telephone number should be listed on the IM notice you receive. If you don’t have it you can get the QIO’s phone number by visiting or calling 1-800-MEDICARE (1-800-633-4227). TTY users should call1-877-486-2048.
  • The hospital has the burden of proving the appropriateness of your planned discharge and must justify it to the QIO. The discharge can be justified either on the basis of lack of medical necessity or on Medicare coverage policies.
  • If you win the fast appeal - the QIO disagrees with the hospital’s decision to discharge you - your Medicare covered stay can continue;
  • On the other hand, if the QIO issues a decision which agrees with the hospital’s decision to discharge you, you have the right to file another appeal – called a “Request for Reconsideration.” You must file this Request by noon of the day after you receive the initial QIO’s decision. Note, however, that you may become financially responsible for the full cost of care you receive starting as of noon of the day you received the QIO’s negative initial decision.
  • The fast appeal process applies whether you are enrolled in original Medicare or in a Medicare Advantage plan. For Medicare Advantage plans see the regulation regarding beneficiary notice of discharge rights at 42 C.F.R. §§422.620, For more information on appeal rights from Medicare Advantage plans see the Medicare website here and here. If you have coverage through Programs of All-inclusive Care for the Elderly (PACE), which are referred to as “LIFE” programs in Pennsylvania, your appeal rights are different. The PACE organization should provide you with written information about your appeal rights.
  • Fast appeal rights apply to beneficiaries who have been admitted as hospital in-patients. But you may be in the hospital on “observation status” rather than as an in-patient. The hospital should provide you with notice if you are in observation status. For more information regarding the problems related to observation vs. in-patient status see FAQ: Hospital Observation Care Can Be Costly For Medicare Patients; and see my earlier article Hospital Patients to Receive Notice of Observation Status.
Before you file your fast appeal, try to talk with the physician involved and/or with the hospital discharged planner assigned to your stay. Tell them why you think you are not ready to be discharged and ask them to reconsider the discharge decision. Feel free to them that you are planning on filing a fast appeal. But be sure not to delay so long that you fail to initiate your appeal within the time required.  Contact the QIO no later than your planned discharge date and before you leave the hospital.
Further Reading
Medicare Appeals (Centers for Medicare and Medicaid Services)
Discharge Planning  (Center for Medicare Advocacy)

Thursday, June 15, 2017

Relief from the Medicare Part B Late Enrollment Penalty

Medicare to Provide Relief for Late Medicare Part B Enrollment Penalties in Certain Circumstances
[This article was written by Elizabeth White, CELA*, an Elder Law Attorney with Marshall, Parker and Weber. It is posted here with her permission.]  
Many Americans who enroll in Medicare Part A mistakenly think that because they have a Marketplace Insurance plan, they do not need to enroll in Medicare Part B. Unfortunately, enrolling in Medicare Part B late can result in late-enrollment penalties. These penalties can affect a person’s Medicare premium for his or her entire lifetime.
Medicare Part B covers medical services such as doctor’s visits, surgeries, durable medical equipment, laboratory tests, and inpatient and outpatient hospitalization.
The good news is that there is currently a waiver program being offered in certain circumstances for those who did not enroll in Medicare Part B. The Centers for Medicare & Medicaid Services (CMS) is offering equitable relief for Medicare beneficiaries who are currently enrolled in Medicare Part A and have coverage through an individual Marketplace plan, also known as a Qualified Health Plan. This relief is available for an individual who had an initial enrollment period that began April 1, 2013, or later, or was notified of retroactive premium-free Part A on October 1, 2013, or later.
Those individuals who were enrolled in a Marketplace plan who want to enroll in Medicare Part B can request a late enrollment penalty reduction. However, this relief is only available through September 30, 2017. To be eligible for the relief, a request must be made by the September deadline.
Additionally, for individuals who qualify for relief, CMS will allow coverage to begin the month that the individual enrolls in Medicare Part B, instead of imposing the typical waiting period for coverage. However, to prevent any possible gaps in coverage, if a person currently has a Marketplace plan CMS recommends keeping that Marketplace plan in place until verification of enrollment in Part B is received.
Individuals who were enrolled in Medicare Part A and a federally-facilitated Marketplace plan should have received a notice explaining the relief. If an individual terminated his or her Marketplace plan and already enrolled in Medicare Part B with a late-enrollment penalty, a notice will not be sent, but the relief is still available.
If you received a notice or believe you may qualify for relief, CMS directs that you contact the Social Security Administration by telephone or visit your local Social Security office and mention equitable relief. Documentation of Marketplace enrollment must be provided to Social Security when seeking such relief.

*Elizabeth White has been Certified as an Elder Law Attorney by the National Elder Law Foundation, under authorization by the Pennsylvania Supreme Court. 

Monday, June 12, 2017

How to Begin your Estate Planning

[This article was written by Tammy Weber, Managing Attorney with my law firm, Marshall, Parker and Weber]
Estate planning is a process that you use to protect your loved ones and your home and savings. You know you should do it, but where should you begin? How are you supposed to know what estate planning documents make sense for you?
It is hard to get started. Earlier in my law career in the mid- to late-1980s I was a federal judicial law clerk for the Honorable Louis C. Bechtle in Philadelphia. Each day there was a case to review or hear that would affect a person’s liberty, involve a significant fundamental right or encompass a dispute worth millions of dollars. It was challenging to begin the process of research that would lead to the ultimate court decision. Judge Bechtle would always say “the way to begin is to begin.” While simple, it was profound. Start somewhere.
Here are some suggestions for how you can begin the estate planning process.
1.    Determine why you need an estate plan.
Think of your life and your estate planning as a puzzle. Each piece of the puzzle is a question that needs to be considered or a decision that needs to be made. Below are a few examples. Do you want to:
  • Decide who gets your assets when you pass away?
  • Name someone to take care of your minor children when you pass away?
  • Name someone to handle your finances if you cannot?
  • Spell out all of your medical treatment decisions in advance?
  • Name someone to make your health care decisions if you cannot?
  • Add new children, grandchildren or other family members to your existing documents?
  • Organize your digital assets, such as passwords for online bill payments and email?
  • Pay for nursing home care for a parent, spouse or loved one?
  • Arrange in-home care for a parent, spouse or loved one?
  • Prepare to pass your business to your children?
  • Find out if you qualify for Veteran’s benefits?
  • Have help handling the estate of a loved one who passed away?
  • Learn how to get the most out of your gas royalties?
  • Make sure your pet is taken care of when you pass away?
  • Make sure my child’s social security income is not affected by an inheritance?
  • Protect your child with special needs?
Use an online tool such as to direct you to information about possible solutions.
2.    Have the conversation(s) with your loved ones.
Life is full of many uncertainties, but planning ahead and talking with your family can be one of the greatest gifts you can give to those you love. It may be a conversation just with your spouse or significant other, or it could involve a conversation with your aging parent(s) and siblings. Be open about the decisions that have been made. Often parents are concerned about offending their children or becoming a burden to them. To the extent that you feel comfortable sharing your reasoning, the  more information and explanations you can give your family while you are alive, the less resentment they will feel when they learn about your choices when you are gone.
Talking to your parents can be more difficult than talking to your children. They have always taken care of you, and now maybe it is time for you to help take care of them. It is important for your parents to understand you are trying to do what is best for them. If they become upset or agitated, drop the conversation and try again some other time.
3.    Create a plan.
Just like no two people are alike, no two estate plans should be identical. Below are some common legal documents that may help you achieve your goals.
  • Will – Signing your Will in the best way to ensure that everything in your estate will go where you want it to go. This is especially important if you have children from a prior marriage or relationship.
  • Financial Power of Attorney – A Financial Power of Attorney will allow you to name someone to make financial decisions for you, pay your bills and write checks if you are unable to do so.
  • Health Care Power of Attorney – If you were unable to make your own health care decisions one day, the person you name in your Health Care Power of Attorney can make decisions about your health care.
  • Family Asset Protection Trust – This specific type of irrevocable trust is a “tried and true” way to protect your hard-earned assets and land from the cost of long-term care, divorce or creditors.
In addition, your assets that pass by beneficiary designations, such as life insurance, retirement accounts and annuity products as well as land ownership should be coordinated with your plan.
4.    Revisit and adjust the plan, as needed.

Once you have an estate plan in place, you have created a foundation, but the plan should change as time goes on. Any significant changes in wealth, family dynamics or a death in the family are a reason to resume the conversation and update the plan. Remember, estate planning is an ongoing process.

Monday, June 5, 2017

5 things to think about before you sign a Power of Attorney

Here are five issues for you to think about before you sign a Financial Power of Attorney.
  • Consider including options that can limit the potential for exploitation by your agent - for example: (1) limiting your agent's power to make gifts, (2) naming co-agents who must agree, or (3) requiring reporting by your agent to a third party.
  • Don’t rely on a “cookie-cutter” power of attorney form that you purchase from a store or online.  Don't be "penny wise and dollar foolish."  Your power of attorney should be drafted with care and adapted to your particular circumstances, needs, and goals.
  • Have an in-depth discussion with your lawyer about whether to give your agent the authority to make gifts on your behalf. Failure to have the appropriate gifting provisions in the document is one of the most frequently encountered problems with powers of attorney. This failure can delay your qualification for Medicaid and VA benefits, result in the need for guardianship or other court involvement, and create the potential for litigation between family members. If your lawyer doesn't raise this issue, you should bring it up yourself. 
  • Consider whether to waive “fiduciary duties” for trusted family members. For example, you may or may not want your spouse or child burdened with state mandated record-keeping mandates. Record-keeping requirement, prohibitions against self-dealing and commingling funds, and other fiduciary duties can be waived when the power of attorney is created, but the waiver must be explicit.
  • Depending on your goals, consider protecting yourself from the inappropriate use of gifting powers by the agent. You can build in protections against abuse of gifting power by:
    • requiring that all gifts be approved by persons other than the agent;
    • limiting the persons to whom gifts can be made (e.g., allowing gifts to be made only to your spouse);
    • requiring that gifts be made in equal amounts - for example, to all your children equally; 
    • requiring that the agent report all gifts made by the agent (e.g., to another family member).

Every older adult should have a financial power of attorney. A well-considered power of attorney is a key to protecting yourself as you age. But beware of using a standard form. Your power of attorney is too important to buy online or sign without expert legal advice. It can protect you but it also can put you at great risk. And think carefully about the powers you want to give to your agent. 

The best power of attorney document will be finely tailored to meet your goals, given your unique circumstances, concerns, and needs, while protecting you from the potential for abuse. This is not a simple planning document.