We Can’t Wait Until We Can Afford It

It looks as if health care reform is going to cost $1.6 trillion over the next ten years. If that is not enough to scare the pants off you, think about all of the government programs that run hugely over budget. However, this cost does not mean we should not implement a public health care plan that ensures that everyone–that is, everyone, EVERYONE, not just most people–has an adequate health care plan. This is something we need to do, as much as we needed to invade Afghanistan and Iraq. When something must be done, you start doing it.

How many families would get started if women waited until they could afford to raise children to get pregnant? Nobody, except the very rich, can afford to have children. Parents do not wait until they can afford children; they have children and stretch their means to raise them.

This is what the United States must do, now. We must implement a universal health care system and then go about finding the means to support it.

Only 900-Day Wait for Social Security

In May 2007, Social Security Commissioner Michael J. Astrue announced plans to reduce the backlog of hearing requests. When he made that announcement there were 63,000 disabled individuals who had been waiting for over 1,000 days to get benefits. A further 138,000 had been waiting for over 900 days. That is over 200,000 individuals who had been living on air, like saprophytic plants, for more than two and a half years!

Since then, Social Security has made “significant progress” with a number of initiatives outlined in the Commissioner’s plan. He claims that aggressive new approaches include increasing efficiency, improving business practices and expanding use of automation. This progress included hiring 133 Administrative Law Judges for 64 locations, opening the National Hearing Center and reducing the number of aged cases.

“Opening the National Hearing Center” means that great numbers of applicants will no longer get to see an administrative law judge. They just get a video conference with a judge in Falls Church, Virginia.

Care to see the progress for yourself? The numbers speak for themselves. Read the semiannual report at:

http://www.ssa.gov/appeals/Backlog_Reports/Semiannual_Report%20FY%2008b.pdf

Everyone should take a look at this and write his, her, or its congressman, congresswoman, or congressother, and senator. This is pitiful. After crowing triumphantly about eliminating the 1,000-day cases last FY and reducing the 900-day cases from 135K to 50K by March, Mr. Astrue, throws in some meaningless graphs and bureaucratic nonsense to give the impression that he is bringing the situation under control. It is pure, unadulterated mendacity by misdirection.

SSA does not say anything about the mean or the median wait times, nor does it say whether those are declining. He does say that applications are up, so myopic concentration on only the oldest of the old cases will provide no improvement with new cases on the increase. Furthermore, it will be at least two more years before SSA cracks the two-year barrier. Is this acceptable? There is no mention of how all these old cases were finalized. There was a June political cartoon that showed a fat Burmese general allowing a civilian to die of starvation, then stating that the problem was solved because the civilian was no longer hungry. Is this the same thing? How many of these 900-day cases were “resolved” by the death of the applicant?

Finally, it will be observed that they claim to have eliminated 63,000 1,000-day cases last year and 80,000 of 138,000 900-day cases this year. If there were 63,000 1,000-day cases and 138,000 900-day cases, and this is a geometric progression, there may be as many as 500,000 800-day cases and Lord knows how many 700-day cases. So far they have been picking low-hanging fruit. It’s going to get a lot tougher to bring the numbers down as they go along.

This does not represent any real progress. Once again, more pressure needs to be brought to bear on this surly, bloated bureaucracy to determine eligibility for badly-needed benefits in a reasonable length of time. Would a one-year time limit be unreasonable? Ask a person who is unable to work due to a serious disability whether a year without income is a problem. If eligibility cannot be determined within a year, benefits should be granted on a temporary basis. Paying benefits to presumably eligible applicants is a lot lighter burden on the government than trying to live like an orchid on a piece of wood is for applicants.

Socialized Medicine–Gotta Have It

Not a Constitutional Right

On the topic of universal health coverage, or, as we diehard liberals like to call it, Socialized Medicine, the Federalist Society crowd and other Neo-Cons make a big production out of trying and failing to find justification for it in the Constitution.  To the extent that we buy into that issue, we are being led astray.  The question is not whether there is a Constitutional right to health care, for there assuredly is not.  The question is whether it is good social policy to establish a program that will ensure a minimum level of access, regardless of means.
Our Conservative comrades compare food, shelter, and education to health care and ask whether those who propose universal health care also propose to provide all of the other necessities of life.  This is intended as ridicule, but the answer is yes; under certain circumstances.

On Food, Shelter & Public Services

Food is certainly a necessity of life, as is shelter.  However, few who say we need universal health care also advocate for free food for all or public housing without regard to need.  What is the difference?  Why aren’t we opening barracks for yuppies and mess halls for the middle class?  Food and shelter, for the most part, are within the financial capacity of most people; even the minimum-wage working class.
It makes sense to establish a government-run program to provide an essential service that is prohibitively expensive for individuals.  This is particularly true when it is relatively inexpensive if provided to the population at large.  It is furthermore sound public policy for the government to provide a service to individuals to protect the public health or welfare.
Almost no one questions the propriety of government programs to provide water and sewerage services to the general population.  A well and a septic system are relatively inexpensive and in most of rural America are quite satisfactory solutions to the problems of acquiring potable water and disposing of waste.  This does not work so well in more built-up areas.  When the population density reaches six or eight households per acre, it becomes both expensive and hazardous from a public health standpoint to allow individual households to remain “off the grid” as to water and sewerage.  In an environment like Manhattan, it would be preposterous.  Even the most conservative ideologues concede the necessity of public service projects to provide water and sewerage.
In a similar fashion, police and fire services are generally accepted as necessarily a governmental responsibility, although at one time property owners had to buy badges for the fronts of their houses to show that they had purchased fire services from for-profit fire brigades.  Why have nearly all communities of more than a few families formed fire departments at community expense?  Infernos like the Chicago Fire.  Your purchase of fire services is of little value if the houses around yours are unprotected.  The point is that a community must establish a fire department for all property in the community to protect itself effectively against fire.
What about the police?  I haven’t heard Limbaugh or O’Reilly calling for abolition of police departments or the FBI.  Although big companies may establish their own security force, communities must have a police department to protect people and property and enforce the law without regard to whether a given individual purchased police services or paid taxes.
Why does it make sense to establish universal health care, but not free food and shelter?  We do provide some subsidies for food and shelter, but there is no widespread lack of ability to purchase those things.  We don’t have a third of the population starving to death the way we have a third of the country starving for health care.  That does not mean it doesn’t happen, though.
The government tried to provide food and shelter in the wake of Katrina.  If there were a nationwide catastrophic failure of the food supply–say along the lines of the Irish Potato Famine–the government would be flying C-130s to other continents to buy food for public distribution.  This, of course, assumes that there is no catastrophic failure of national leadership–say along the lines of the Katrina Aftermath.

Availability, Cost & Fairness

The health care crisis in this country is not an availability, nor a cost, crisis. It is a failure to devise an effective system of pricing and distribution.  If we stopped treating the poor and uninsured in emergency rooms at the expense of those who pay for care either through insurance or out-of-pocket, the rapid escalation of insurance premiums would taper off and we would start paying the true cost of the services we are consuming.  If we require the healthy uninsured to buy into the system, the overall cost to everyone would be further reduced.  Just as we require car insurance, we should require a health care buy-in so that a healthy uninsured person who becomes catastrophically ill or injured does not become a charity case to everyone’s detriment.
Those who have health insurance cringe at the thought of “socialized medicine,” but a third of our population lack health insurance at least episodically.  I am sure they would welcome socialized medicine, as compared with what they have now. If a basic catalog of health benefits is insufficient for others, they could purchase supplemental insurance the way Medicare members purchase medigap insurance today.  It could be the best of all possible worlds for everyone. At least it would be better than what we have now.

Employer Problems

Multinational corporations will ultimately lead the charge to universal state-run health insurance.  U.S. industry is suffering a huge competitive disadvantage because of health care costs “built in” to every product.
Spiraling health costs are crippling those employers who continue to insure their employees and giving a competitive advantage to the skinflint employers who refuse to do so.  In the ‘60s and ‘70s, even low-level employees of small companies generally had health care coverage with only a small amount of employee contribution.  That is no longer true.  There are approximately 47 million  who are recognized as “uninsured” by the government.  This is nearly twice the number of those considered unemployed, so a large part of this group are the working poor.
Uninsured means that they had no insurance during the previous year.  However, other studies show that if you include persons who had no insurance for part of the previous year, the number is at least twice that, or 94 million who are uninsured or under-insured.
There are approximately 301 million people in the United States, of whom 38 million are 65 or older.  Since almost all of the 65-and-up cohort are covered by Medicare, 38% of those who would be in the market for health insurance are under-insured.  If you factor in all of those  already covered by Medicaid, the under-insured population under 65 is probably close to 50%.
Besides the un- and underinsured, those who have coverage are seeing a serious erosion in their benefits.  I could not be in business were my wife not employed by a major corporation.  However, the employer-paid portion of her health coverage has shrunk while the deductibles and co-pays have increased tremendously in the last ten years.  A simple trip to the emergency room for a laceration or other injury requiring radiology now costs us $2,000 or more.  A hospital admission would cost more than $5,000.  How can a family of four trying to get by on $50,000 a year afford that kind of expense, let alone the “working poor?”
One would think that the majority of us would demand universal health care, but the insurance and health care provider lobbies are very powerful and the uninsured are not.  Furthermore, “socialized medicine” has been stigmatized by its opponents.  The “liberal” press has not been much help, either.
A client became very irate when I made a remark about how this country needs universal health care.  He said, “You are talking about socialized medicine; that would be very bad; no, no, no!”
“Gary,” I replied, “you are in your forties and living with your father; you have no health insurance, at all.  How could socialized medicine be worse that what you have now?”  I explained how much it would cost him if he injured himself or became seriously ill.  He became very thoughtful after our discussion.

We Pay Too Much for Bad Coverage for the Uninsured

Another argument against universal health care is made by libertarians and Neo-Cons who say they do not want to pay for other people’s medical care.  This is ridiculous.  People who are uninsured–and that is mostly people who cannot afford health insurance, not those who decide to forgo health insurance because otherwise they would have to settle for a 525i when they want a 760Li–get medical coverage at public expense now.  However, instead of seeing a physician from time to time to catch developing problems, they go to the emergency room with a crisis.
Unless the plan is to allow hospitals to turn away critically injured or ill people if they cannot prove that they have cash for treatment or that they are insured, the uninsured will continue to be treated at the expense of those of us who have insurance or can afford to pay for care.  If the plan is, in fact, to deny the ill and injured if they cannot pay, this would mean that everyone would have to ensure that they can prove their coverage even in an emergency.
Let’s assume that your daughter is stabbed during a robbery and her purse is stolen.  She is lying on the sidewalk, bleeding to death.  The EMS are called.  Before they will try to stop the bleeding or take her to a hospital, they will demand to see proof of health insurance.
What if you have a heart attack?  If you do not have your health insurance card on you, too bad.  You don’t get helped.
Unless you are an Ayn Rand disciple and are willing to ration health care to only those with high income or assets, universal health care is the only reasonable answer.
In the first place, providing universal health care, so that everyone has a reasonable level of health maintenance, as well as hospitalization coverage, probably would not cost much more than the current hodgepodge of Medicare, Medicaid, health insurance, and indigent care–with millions simply falling through the cracks.  It would cost less in the long run because there would be more healthy, productive citizens.
Furthermore, the per capita cost can be kept low.  One of the problems with health insurance is that too many healthy people under insure or go without insurance.  This means that the insureds with the highest health care costs tend to be concentrated in certain plans that then have very high premiums due to insurer screening or by reason of better coverage.
A universal plan like Medicare that provides basic coverage at a nominal cost would be cheaper and more fair in the long run.  It would cost less than the current expenditures in taxes, health insurance premiums, lost wages, poor performance in school and on the job, and so forth.
The argument I hear all the time, which I find deeply troubling, is that with universal coverage, we will have rationing of health care.  We have rationing now.  The only difference between the way health care is rationed now and how it would be with universal coverage is who has to wait for care.
Under the current system, the poor and working poor get the short end of rationing.  With universal coverage, upper middle class Americans will have to share some of the burden of waiting or limiting care.  This is about the political power of the middle class, not the numbers of people affected, or the cost, or the efficiency or efficacy of the system; it is about an ultimately democratic system for delivering care.  It is apparently deeply un-American to suggest that the health or life of a lawyer or accountant is not more important than the health or life of a cashier or mother on welfare.

Let’s Get Fair

Consider a recent public health study citizens of the U.K.  How often do we hear the British Health Service demonized as all that is wrong with “socialized medicine?”  And yet, by virtually every measure, the British are healthier than are Americans.  They spend half as much of GDP on health care and achieve far better outcomes.  The Germans spend a quarter of what we do and have an excellent system.  It is time for us to wake up and get civilized.

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John Payne, Attorney
Garrison LawHouse, PC
1800 Grindley Park Street, Suite 6
Dearborn, Michigan 48124
Come visit me at: http://www.law-business.com
313.563.4900/fax 313.562.3340

Pennsylvania Office:
9853 Old Perry Highway.
Wexford, PA 15090-9312
800.220.7200/fax 866.399.7695

© John B. Payne, 2008

Pennsylvania Supreme Court Smacks Down Medicaid Agency

Yours Truly scored a victory for community spouses of Pennsylvania nursing home patients on Tuesday, May 29, 2008. On that day the Pennsylvania Supreme Court sent the Department of Public Welfare packing. It denied DPW’s appeal from the decision of the Commonwealth Court that DPW could not refuse to grant Medicaid based on a proper, Medicaid-compliant, immediate annuity purchased by the community spouse.

To start at the beginning, on February 5, 2003, Pauline Ross entered a nursing home. On April 8,
2005, Pauline’s community spouse, Leonard Ross, transferred $418,026.66 in marital assets into a Fidelity & Guarantee “Medicaid Qualified, Single Premium,Immediate Annuity.” Under the annuity contract, F&G pays Leonard $10,211.83 per month from May 15, 2005, to September 15, 2008. Leonard established the F&G Annuity so that Pauline would be eligible for Medical Assistance-Nursing Home Care benefits and to pass the marital assets on to the next generation. Leonard is the owner and sole annuitant of the F&G Annuity, and Leonard’s three children are the beneficiaries if Leonard dies before September 15, 2008. Pauline had no monetary interest in the F&G Annuity, and, after Leonard transferred the marital assets into the F&G Annuity, Pauline had no assets with which to pay for her nursing home care.

Pennsylvania refused to approve Medicaid for Pauline, claiming that the annuity could be sold to J.G. Wentworth at a 40% discount, an immediate payment of $250,000. Pauline, according to the Commonwealth, had that much in available assets.

There were several problems with DPW’s case. First of all this would be a loan, not a sale, and loan proceeds are not considered an asset under Medicaid law. Secondly, there was solid testimony proving that F & G would not permit J.G. Wentworth to purchase the annuity. Finally, federal Medicaid law clearly permits exactly this sort of transaction. Pennsylvania and only four other states try to deny Medicaid in such cases.

An administrative law judge–a DPW employee, of course–ruled against Ms. Ross. She said Mr. Ross would have to dump the annuity on J.G. Wentworth and lost 40% of his investment. On appeal, the Pennsylvania Commonwealth Court pummeled the Department. It ruled that Mr. Ross was within his rights to invest in an annuity and his wife is entitled to Medicaid. Tuesday’s ruling by the supreme court was the final smackdown. Pennsylvania’s highest state court told DPW it could not deny Medicaid based on a properly amortized Medicaid-friendly annuity purchased by the community spouse.

Tuesday’s ruling also completed the tri-fecta. Two federal district courts had already told DPW it was acting illegally. Those cases were Mertz, ex rel. Mertz v. Houstoun, 155 F. Supp. 2d 415 (E.D. Pa., 2001), and James ex rel. James v. Richman, 465 F. Supp. 2d 395 (M.D. Pa., 2006). DPW appealed the James ruling to the federal court of appeals, but has little chance of winning.

This decision means that if your spouse is in a nursing home, you can preserve a substantial amount of money through an annuity, in addition to the 50% or $104,400 the DPW says you can keep. This annuity purchase is done after your spouse is in a nursing home. If an annuity sales person tells you to put your money into an annuity now, in case you or your spouse needs to go into a nursing home, run–do not walk–away. However, if your spouse is in a nursing home in Pennsylvania and your assets, apart from your house and one care, are higher than $25,000, we can help you save the excess. Call us for a consultation.

John B. Payne, Attorney

Dearborn, Michigan & Pittsburgh, Pennsylvania

(800) 220 7200

FAX (313) 562 3340

©2008 John B. Payne, Attorney

www.law-business.com

Sun Life Time Bombs in Your Desk Drawer

Sun Life Assurance Company of Canada demutualized on March 22, 2000. This means that it went from being a mutual company in which each policy owner also owned a piece of the company to being a corporation owned by shareholders.

For lack of a better way to inconvenience its policy owners, Sun Life made them shareholders and sent them stock certificates. Doing so made tens of thousands of unsuspecting survivors of the Depression into corporate investors. For many of them, this will become a catastrophe that Sun Life could have avoided had at least one person in the company’s headquarters given the matter a little thought.

Many of Sun Life’s policy owners bought their insurance in the ‘40s or ‘50s. They are survivors of the Depression and World War II, who would never willingly invest in the stock market. Sending a stock certificate to them was like sending a Rabbit cork extractor to someone who had never pulled a cork out of a wine bottle–with no instruction sheet.

They received an important-looking piece of paper that they did not understand, just as the non-wine drinker would not know the Rabbit from a tire-pressure tester or a meat thermometer. He or she could probably figure from the sharp wire spiral that the Rabbit is not a sex toy, but beyond that would have no clue as to what it is. The Rabbit would be thrown in the junk drawer and eventually discarded. Similarly, the Sun Life stock certificate would be thrown in a desk drawer, soon to be lost forever. The policy owner would be totally unaware of how crucial and troublesome the loss of that pretty certificate would be.

If the problem were only the loss of the value of the stock, that would be a minor inconvenience. However, it is much worse than that. If the policy owner ever needs public benefits, such as Medicaid or housing assistance, the value of the stock can present a formidable obstacle. In the worst case, the policy owner might apply for public benefits without revealing ownership of the stock–after all he or she doesn’t even know what that certificate means–and be charged with fraud. Otherwise, the worker will ask about the stock that accompanies the life insurance and several months of benefits will be lost while the shareholder tries to get a new certificate. Similar problems will arise if the shareholder dies. Many probate estates will be opened for no reason other than to liquidate Sun Life stock.

If you or a family member lost a Sun Life stock certificate, you will find it is almost as hard to replace as your wife’s trust after an Eliot Spitzer incident. Here is a copy of the letter received by one hapless Sun Life policy owner:

Sun Life Assurance of Canada Letter to Policy Holder

The first obstacle in requesting a replacement certificate is that the Affidavit of Loss/Agreement of Indemnity must be filled out in triplicate and each of the three originals must be notarized. This is not too onerous–it only requires a trip to a national bank–but check out the requirements for an agent under a power of attorney to request a replacement certificate.

Many older citizens can no longer handle financial affairs and entrust their business to an agent under a power of attorney. According to the letter, Sun Life requires “the original or Notarial Copy of the Power of Attorney to be presented and must be certified within 6 months of presentation to us by an acceptable guarantor if the original was not issued in the last 6 months.” It goes on to say that certifications are not acceptable from a notary or commissioner for oaths and that there must be a certificate of continued validity attached. U.S. transfers require a Medallion Signature Guarantee on the power of attorney. Unless a very knowledgeable bank officer or stock broker is involved, these documentation requirements cannot be completed without the assistance of an attorney.

Finally, after all this, the stockholder must send a certified cheque, bank draft or money order for 2% of the value of the stock in Canadian funds! Try to find a financial instrument in foreign currency in most parts of the United States if you feel the need to be frustrated for a change. Fortunately for my Michigan clients, Canada is just across the Detroit River. What about people in Nebraska or New Mexico? Are they going to have make a trip to Canada to get a $300 money order?

It doesn’t have to be that difficult. In the first place, it is the stock certificate that is being replaced, not the value of the stock. They do not have to make a federal case out of replacing a stock certificate that is only for a few hundred shares. Secondly, there is no earthly reason why Sun Life could not accept U.S. funds. Finally, there was no reason to issue stock certificates, at all!

When Metropolitan Life Insurance Company demutualized in April 2000, MetLife’s new shareholders were not sent stock certificates. They were informed that their new shares would be held in an account for them. All they need to do to sell their shares is to make a phone call–Ba da Bing, Ring, Ring! They would then get a check–Ba da Boom, Ching, Ching! It is as easy as that.

If you are planning your estate or assisting someone else, take a careful look at the life insurance portfolio. Sun Life Assurance of Canada stock is particularly problematic, but many other mutual companies converted to corporations and issued stock, either on account or in certificate form, to their policy owners. Find those stock certificates now, rather than later. Lost certificates will need to be replaced at some point and the lapse of time will not make replacement any easier.

Once the shares have been found, transfer the shares to the brokerage account where the person’s stock portfolio his held, or liquidate them if they are the only stock holdings. There is little reason for someone who does not regularly invest in stocks to hold a few hundred shares of one insurance company. They just create problems when it comes time to liquidate or manage the estate.

John B. Payne, Attorney
Dearborn, Michigan & Pittsburgh, Pennsylvania
(800) 220 7200
FAX (313) 562 3340
©2008 John B. Payne, Attorney
www.law-business.com 

Staying Put in a Nursing Home

Being in a nursing home is hard enough without being threatened with eviction. That is a problem that faces many of our most vulnerable citizens.

Nursing homes often prefer private-pay residents to Medicaid residents and will threaten to discharge a patient who goes on Medicaid. This is illegal!

Medicare rules are very clear that discrimination based on source of payment is illegal. Ensuring that the patient is in a bed that is eligible for Medicaid reimbursement is an administrative issue for the facility to resolve.

If a person resides in a nursing home that has any Medicare or Medicaid beds, there are only six grounds for eviction: (i) It is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility; (ii) The resident’s health has improved so the services provided by the facility are no longer needed; (iii) The safety of individuals in the facility is endangered; (iv) The health of individuals in the facility would otherwise be endangered; (v) The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility; or (vi) The facility ceases to operate.

A resident cannot be transferred for non-payment if he or she has submitted to a third-party payer all the paperwork necessary for the bill to be paid. Non-payment would occur only if a third party payor, including Medicare or Medicaid, denies the claim and the resident refused to pay for his or her stay. A Medicare or Medicaid claim is not considered denied until after an administrative hearing has been requested, held, and decided.

Nursing homes may not put a person who is already in the home on a waiting list for a Medicaid bed. A resident who becomes eligible for Medicaid is entitled to the next available Medicaid bed. Some nursing homes will try to convince the family that the resident must be moved. If that happens, consult a competent Elder Law attorney.

A nursing home may try to claim that the resident’s needs cannot be met when the only problem is that the resident’s care is more expensive or more time-consuming than the facility operator would prefer. This is not grounds for discharge.

Transfers of this sort often stem from the facility’s desire to specialize in a particular type of patient or care–e.g., Alzheimer’s, respite or short-term rehabilitation– to maximize reimbursement or streamline care requirements. Neither the Reform Law nor Medicare or Medicaid law recognizes or supports such distinctions. There is no basis, therefore, for a discharge simply because the resident may now require long-term custodial care rather than rehabilitation, or no longer qualifies for Medicare-covered skilled care. The Nursing Home Reform Law states that every nursing facility “must provide services to attain or maintain the highest practicable physical, mental and psycho-social well-being of each resident” … “in such a manner and in such an environment as will promote maintenance and enhancement of the quality of life of each resident.” This means that care must be individually tailored to best serve each resident, with reasonable accommodation of individual needs and preferences and sufficient staffing (nurses, aides, and speech, occupational and physical therapists) to ensure the health and safety of all residents.

Nursing home residents have many rights under state and federal regulations. There are also state agencies that are directed to enforce those rights. If you think you or someone you care about is being treated badly in a nursing home, call the state nursing home ombudsman or the state agency that licenses nursing homes. Or call an Elder Law attorney if you have trouble finding out how to contact the state enforcement agency.

John B. Payne, Attorney
Dearborn, Michigan & Pittsburgh, Pennsylvania
(800) 220 7200
FAX (313) 562 3340
©2008 John B. Payne, Attorney
www.law-business.com