The BCBSM Stone Wall

A law firm that assists clients with public benefits applications frequently runs into boneheaded bureaucrats who consider it their mission to make it as difficult as possible for anyone outside the organization to receive the services they are due. Usually, a supervisor or a representative at a different office or branch can be found who will be more cooperative. Seldom does the law firm find itself trying to transact business with an entire organization of obstinate, discourteous boneheads. Blue Cross Blue Shield of Michigan (BCBSM) is such an organization.

Trying to procure a paper premium statement can take weeks if the insured person is not able to call BCBSM, hang on the line for 30 minutes or more, and explain what is wanted. When the insured is represented by an agent under a durable power of attorney, a retained attorney, or the spouse who pays the premiums, getting a paper premium statement usually involves a lengthy telephone campaign to get permission to mail or fax the power of attorney. Then it is necessary to wait for days for some sort of response.

Bear in mind that the information sought is not confidential medical records covered by HIPAA. It is just a paper premium statement that could be sent to the insured in the normal course of business.

Recently, a client told us that she had been trying for weeks to get a premium statement from BCBSM. She was told that a company release of information would be sent to her. It never came.

Because of past experience, I directed my request for a premium statement to Jeffrey Rumley, General Counsel of BCBSM. I attached the power of attorney signed by the insured appointing his agent. I also attached the release of information and appointment of representative giving me the right to request information and represent the insured. That document was signed by the agent. Nearly every bank, insurance company, real estate agent, brokerage firm, and government agency with which my office deals would honor a request backed up with a power of attorney and release of information. Not BCBSM!

Two days after emailing Mr. Rumley, my office received a call from a BCBSM representative. She stated that BCBSM does not recognize any power of attorney drawn up by an attorney — which is asinine. She stated that to get any information, the insured, who is in a nursing home and incapacitated, must sign a request on BCBSM’s form.

Furthermore, she stated that BCBSM would not fax the form, it would have to be mailed. There was no explanation of why they could not fax the form to my office, despite the fact that it would have no personal information of the insured – or anyone else – on it.

After a second emailed letter to Mr. Rumley, an assistant general counsel finally provided a link to procure the form for an agent under a power of attorney and a dizzying array of similar forms. The forms are, and have been, available to anyone with online access. Why the BCBSM representative was so coy is a mystery.

For BCBSM, which recently inflicted double-digit premium increases on its customers, to make it so difficult for people in nursing homes to get information needed to apply for Medicaid is appalling. There are thousands of BCBSM insureds receiving long-term care. There is no excuse for making it an excruciating ordeal to get premium verification for Department of Health and Human Services. Instead of erecting a bureaucratic brick wall, it should be possible to request that verification be sent to the Medicaid agency with a telephone call:

BCBSM: How may I help you?

Caller: I am applying for Medicaid for my mother, Suzanne Sugerbaker, and I would like insurance coverage and premium verification to give the worker.

BCBSM: We can send that directly to the Medicaid agency if you give me Suzanne’s Blue Cross member number and the case number assigned by Medicaid or her Social Security Number.

Caller: Suzanne’s Blue Cross member number is IDK313250075. Her Medicaid number is 8182850205.

BCBSM: Thanks, I’m sending the information right now.

This should not be difficult. If Google knows that I went to Wendy’s at noon and ate a Double-Double Baconater, then went to Walgreen’s at 2:24 p.m. and bought Nexium, how hard could it be for an IT juggernaut like BCBSM to verify a member’s premium and coverage to a government agency through a data link? I’ll bet that BCBSM already keeps track of how many Baconaters I eat.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2017 John B. Payne, Attorney

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The Prescription You Do Not Need

Among the clues that one is no longer young can be proliferation of prescription drugs in the medicine cabinet. In this age of miracle drugs you do not even have to be “older” to be taking a regimen of four, five, or more prescriptions, daily. Aggravating this tendency for Americans to take more and more prescriptions is the fact that there is no central registry of an individual’s prescriptions, so doctors are often unaware of all the drugs a patient is taking.

Once, while volunteering as a drug crisis counselor in the ‘70s, I was called to the home of a factory worker. This was unusual because most of our calls were for overdoses of psychedelics or “downers” by students and those who tuned in, turned on and dropped out.

The man was sitting at his dining room table staring out at his back yard, catatonic. He had been seeing a large number of psychiatrists, who all gave him prescriptions for strong mood-altering drugs. His wife showed us a large toiletry bag holding dozens of psychotropic prescriptions. It was no wonder he was in the o-zone.

In 40 years there has been little progress toward protecting patients from conflicting treatment plans from different doctors or unnecessary prescriptions by scrip mills. Pill freaks can still go from doctor to doctor collecting drug prescriptions at every stop. Now they are even armed with all the brand names of the pills they probably do not need because television is polluted with Big Pharma ads, as documented today by Bloom County.

I recently learned of another aggravating factor in the drug tsunami pouring over our country – drug “protocols.” A client who takes two prescription drugs recently picked up her prescriptions and found a third in the bag, a generic for Prilosec. Surprised, she looked it up on drugs.com and learned that it is a proton pump inhibitor (PPI). She told me, “I did not know that my proton pump needed inhibition. I always thought my lack of inhibition was part of my charm.”

Reading further, she learned that PPIs are used to treat heartburn and acid reflux. She had never had a problem with her GI tract and eats highly spiced, exotic foods with gustoand no ill effects.

Prilosec was recently found to be associated with an increased risk of dementia. In addition to the dementia risk, there was a respectable catalog of dire side-effects, such as diarrhea, muscle pain or spasms, heart-rate abnormalities, and seizures. Finally, since PPIs suppress production of stomach acid, the body tries to compensate for the increased pH in the gastro-intestinal tract after a period of PPI use by producing more stomach acid. This requires ever-higher doses or a more powerful PPI.

Now both curious and alarmed, she called the office of the doctor who prescribed the PPI to ask why. The nurse checked with the doctor, who told her he prescribed the PPI because it is listed in a drug “protocol” for her condition, which had nothing to do with the GI tract. In response to her expression of concern that she was being prescribed medication for symptoms she did not have, the nurse assured her that “everyone” takes PPIs. The nurse, herself, takes Prilosec, but will be graduating soon to a more powerful medication for acid reflux because Prilosec is losing its effectiveness for her (Remember about the body’s response to prolonged use of PPIs?).

Writing a prescription based on a drug “protocol” is like prescribing for a real patient from a hypothetical medical record. This raises concerns on many fronts.

First, if the patient does not have the condition the drug is intended to treat, the doctor is introducing unnecessary interactions with other drugs. Even if the doctor knows all the prescriptions the patient is using, he or she is not with the patient on a daily basis and will not know about over-the-counter drugs and supplements the patient may be consuming or lifestyle circumstances and diet that may affect how the drug is tolerated. A real patient is likely to differ in important ways from the hypothetical patient on which the protocol is based.

Secondly, prescribing from a protocol will lead to an upward spiral in the number of prescriptions doctors write. A drug protocol created by, or with the connivance of, the pharmaceutical industry will include every possible application for every drug, but will not catalog contraindicated products. As a consequence, the list of suggested pharmaceuticals for a given diagnosis will expand over time, but never contract.

Finally, many patients will take whatever prescriptions a doctor gives them. They may not realize that a prescription is treatment for symptoms or conditions they do not have. An unnecessary drug may become a regular part of the patient’s drug regime and the side effects of that unnecessary drug may require still more prescriptions to treat those side effects. Patients in assisted living facilities and nursing homes are especially prone to take pills they do not need. They are handed their medication and take it without question.

One resident in an assisted-living facility was taking over $500.00 per month in medication and was almost totally unresponsive. When the family had a money problem and couldn’t pay for the prescriptions, they stopped giving them to her. She soon perked up and started asking about her grandchildren. She had been chemically restrained to make her more tractable.

Our consumption of pharmaceutical products is out of hand. Automatic inclusion of additional substances based on a hypothetical model of a patient’s diagnosis would be one more aggravating factor. Physicians need to prescribe treatments based solely on analysis of the specific patient’s symptoms and conditions and patients need to be more inquisitive about the prescriptions they are being given. Further, any patient who is taking more than three prescriptions should have a periodic review by an independent pharmacist or different doctor to analyze the drug interactions going on.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2016 John B. Payne, Attorney

Judicial OCD in Tennessee

In Frustrating the Intent of the Testator, I observed that many appellate courts seem to delight in invalidating wills that were clearly executed by the testator.  If judges take pleasure in destroying the estate plans of the recently departed, Hon. Kenny Armstrong of the Tennessee Court of Appeals should be rapturous to the point of wetting his pants in having pulled the rug out from under an unfortunate deceased testator, his attorney, and two well-meaning, but displaced, witnesses.  It is the epitome of formalism over substance.

On October 10, 2008, Bill Morris (“Decedent”) executed his Last Will and Testament.  In re Estate of Morris, 2015 WL 557970, 1 (Tenn. Ct. App. February 9, 2015).  The last two pages of the document show that the drafting attorney went to great lengths to establish that the testator intended to sign his will and, in fact, signed it.  However, the Tennessee Court of Appeals managed to find grounds to throw out the will as out of conformity with the Tennessee wills statute.

As is typical in these cases, the court first said that it would “endeavor to effectuate a testator’s intent.”  Id. at 4.  The court then invalidated the will because the word “affidavit” appears between the testator’s signature and the witnesses’ attestation.  According to the court, by signing below the “affidavit,” but not above it, the witnesses signed the affidavit, which, of course, was part of the document, but not the will, itself.

It is particularly ironic that the court stated, “There is no dispute that the testator properly signed his will at the end of the document.”  Id. at 2.  Thus, in a paroxysm of perversity, the court vitiated the testator’s signature by finding a hyper-technical error in the witnesses’ signatures intended to verify the testator’s signature.

In Frustrating the Intent of the Testator, I said:

An attorney should spend at least an hour gathering the facts for even the simplest estate, and at least an hour going over the documents with the client, before they are executed. Attorneys who rush through will executions do not serve their clients properly.

If only it were that simple.  It is clear that Bill Morris’s attorney, the witnesses, and Bill, himself, did their very best to execute his will correctly.  Sadly, best efforts are never enough when there is a judge determined to screw up the testator’s estate plan.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2015 John B. Payne, Attorney

Vital Legislation for Persons with Disabilities

The Special Needs Trust Fairness Act has been re-introduced in this Congress as Senate Bill 349.  Please urge your federal legislators to vote for this bill.  Read about it here.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

Regulation of Powers of Attorney

The director of a non-profit organization that wants to end financial exploitation of the elderly when wills, trusts or powers of attorney are executed asked why powers of attorney are contracts.  She said her organization would like the law to ensure that principals understand what they are signing.  She would like the legislature to pass a law to require agents to tell principals everything they do or propose to do and to provide an accounting to the principal.

Asking why a power of attorney is a contract is like asking why water is wet.  A power of attorney is based on the law of agency, which is a part of the law of contract.  Wills and trusts are also contracts.  A contract is basically an agreement between or among two or more people that is intended to bind them to do or not do certain things.

Michigan and Pennsylvania, as do other states, require a principal to sign an acknowledgment that they understand that they are empowering the agent to act outside of the principal’s supervision.  Agents are also required to sign an acknowledgment that they are bound to act in the principal’s best interests, to keep the principal’s property separate from the agent’s property, and to do what the principal wants done.  This does not prevent financial abuse, but it does put agents on notice that they may be held accountable for misdeeds.

The best assurance that the principal knows what he or she is signing and is appointing the right person is to have an attorney draw up the document and supervise the execution.  Before I prepare a power of attorney, I talk to the principal one-on-one and assure myself as well as I can that he or she knows what he or she is signing.  An attorney is ethically obligated to protect the client and a conscientious attorney will establish an attorney-client relationship with the principal.  I also interview the prospective agents and other family members to assure myself that they will act in the principal’s best interests.  I have drafted over 1,000 powers of attorney for clients and I am not aware of any cases of financial abuse of my clients.  More often, the problems I see reflect weaknesses in powers of attorney.

It is difficult to regulate powers of attorney without infringing on the principal’s right to contract.  A main objective of signing a power of attorney is to ensure that the court stays out of the person’s life and that the principal’s affairs remain private.  The Pennsylvania Supreme Court Elder Law Task Force and the State Bar of Michigan Elder Law and Disability Rights Section Council, on both of which I sit as a member, have been trying to find ways to protect principals without depriving them of their rights.  Requiring registration or formal accounting might offer protection, but either of those raise questions about who will oversee the agent, restrict privacy, and inflict court supervision similar to guardianship.  This is not a simple problem.

 

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

 

©2014 John B. Payne, Attorney

 

Special Needs Trust Fairness Act of 2013

There is important federal legislation sponsored by Rep. Glenn Thompson, of Pennsylvania, that is pending in Congress.  This change to the Social Security Act is supported by the National Academy of Elder Law Attorneys and many advocacy groups for persons with disabilities, such as the Special Needs Alliance.  The legislation would allow persons with disabilities to create their own trusts under 42 USCA 1391p(d)(4)(a) if they have the capacity to do so.

The Special Needs Fairness Act of 2013, H.R. 2123, addresses a problem for many persons with disabilities.  Special Needs Trusts allow a person with a disability to set aside assets to supplement daily living expenses and provide additional care when government benefits are not sufficient.  Such a trust now must be settled by a parent, grandparent, guardian, or the court, even when the person is not incapacitated.  When there is no family member or guardian to act as settlor, filing a petition to have the court act as settlor is a purposeless formality that adds considerable expense to the process and burdens overworked courts unnecessarily.

It is significant that no court action is necessary when a parent or grandparent acts as settlor of the Special Needs Trust.  Requiring a court to establish the trust solely due to the unavailability of a parent or grandparent is an unfair restriction for a person with a disability in the exercise of his or her rights.  The Special Needs Alliance supports the legislation, stating, in part, as follows:

Often, our members are called upon to assist persons with disabilities in creating special needs trusts, as provided in 42 U.S.C. §1396p(d)(4)(A).  Unfortunately, this section does not permit a capable person with special needs to create his or her own trust, limiting the class of trustors to the person’s parents, grandparents, a guardian or the Court.  Since adults often outlive their parents and grandparents, many persons with disabilities have no alternative but to expend unnecessary time and money to go to a Court to ask a judge to create the trust for them.  This restriction fails to recognize that persons with disabilities should have rights equal to nondisabled citizens where possible, and it continues the traditional denigration of persons with disabilities.

Please contact your U.S. representative and ask him or her to support H.B. 2123.  If you are a member of an organization that provides assistance to, or advocacy for, persons with disabilities, urge your organization to support the Special Needs Fairness Act of 2013.

 

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

 

©2013 John B. Payne, Attorney

 

 

An End to the Dreaded Plateau

On July 24, 2010, an article entitled “The Dreaded Plateau” appeared in this blog. It explained why some Medicare patients have trouble getting their full 100 days of skilled care or rehabilitation. The recent settlement of a federal class lawsuit addressed the “progress” requirement often incorrectly applied to patients in skilled care. The progress requirement is also referred to as the “improvement standard.”

Medicare covers up to 100 days of skilled care or rehabilitation. Rehabilitation or skilled nursing facilities will issue a Notice of Medicare Skilled Care Termination as soon as there is any doubt that the patient needs skilled care. Often the reason given is that the patient has reached a “plateau” in his or her progress. That requirement is not supported by Medicare law, but it was used by facilities and permitted to be used by the Centers for Medicare and Medicaid Services (CMS), the federal oversight agency for federally-supported health care programs.

The attorneys at the Center for Medicare Advocacy (CMA) are are true heroes in the battle to maintain a reliable, healthy Medicare program and in the struggle to help Medicare members get the best possible care. In conjunction with Vermont Legal Aid and other advocates, CMA achieved a landmark settlement with CMS. In Jimmo v. Sebelius, No. 11-cv-17 (D.Vt.), filed January 18, 2011, a proposed settlement was reached October 16, 2012. When the agreement is signed by the judge, CMS will revise the Medicare Benefit Policy Manual and other Medicare Manuals to correct suggestions that Medicare coverage is dependent on a beneficiary “improving.” New policy provisions will state that skilled nursing and therapy services necessary to maintain a person’s condition can be covered by Medicare. This settlement is described in detail on the CMA website.

 

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

 

©2012 John B. Payne, Attorney

 

 

Dreadful Michigan Medicaid Joint Tenancy Rules

Michigan Department of Human Services has promulgated restrictive new policies concerning real estate owned by a Medicaid applicant or recipient jointly with someone else. Prior to April Fool’s Day 2011, real estate owned as a joint tenant with rights of survivorship (JTWROS) with someone outside of the Medicaid asset group (anyone other than a spouse, in most cases) was not considered that person’s asset, as long as the other joint tenant refused to agree to sale or tranfer of the property. New policy that became effective April 1, 2011 is a cruel prank on thousands of frail senior citizens of limited means.

For many years, a joint tenant in a piece of real estate was not prevented from qualifying for Medicaid if another joint tenant who is not the spouse of the Medicaid applicant refused to sell or convey the property. This was consistent with the rules for Supplemental Security Income (SSI), which is federal welfare for senior and disabled persons who have no income and very limited property. The Medicaid asset rules concerning real estate owned as JTWROS stated as follows:

Jointly owned assets are assets that have more than one owner.
Note: For FTW determinations jointly owned assets are considered to belong to the initial person.
An asset is unavailable if an owner cannot sell or spend his share of an asset:
• Without another owner’s consent, and
• The other owner is not in the asset group, and
• The other owner refuses consent. Department of Human Services Bridges Eligibility Manual (BEM) Item 400(7) (April 1, 2011).

This a reasonable policy. Many persons become joint owners of property due to inheritance, by joint purchase of real estate, or through adding names to property for estate planning. Joint owners with rights of survivorship are locked in. They can execute a quitclaim deed and give or sell their interests, but they cannot separate their interests in the property from the other owners without their consent. Under Michigan law, joint owners with rights of survivorship cannot force partition of the property through legal action. However, the April Fool’s Day Medicaid rules were drafted with blatant disregard for this legal principle.

Here is the new Medicaid policy:

Exception: Jointly owned real property is only excludable if it creates a hardship for the other owners; see hardship in this item. BEM Item 400(7) (April 1, 2011).

Note: For jointly owned real property count the individual’s share unless sale of the property would cause undue hardship. Undue hardship for this item is defined as: a co-owner uses the property as his or her principal place of residence and they would have to move if the property were sold and there is no other readily available housing. BEM Item 400(8-9) (April 1, 2011).

This new policy will make it impossible for many deserving Medicaid applicants to get Medicaid through no fault of their own. Often these Medicaid applicants will be rendered ineligible for Medicaid through no act of their own.

Let’s assume that Stymie Stone, an unmarried nursing home inmate who needs Medicaid, inherited a portion of a pig farm known as the Stone Family Sty. Stymie is a joint tenant with rights of survivorship with his three siblings. If the parcel is worth more than $8,000, Stymie cannot get Medicaid because the interest will be valued by DHS at more than $2,000. He cannot force his siblings to buy him out or sell the property and if he gave his interest away, he would be subject to a divestment penalty.

In order to exclude Stymie’s interest in the Stone Family Sty, he would have to demonstrate not only that one of his siblings lives in the pigsty as his or her principal residence, but that there would be “no other readily available housing.” Try to prove that there is no other readily available housing in this real estate market!

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Many applicants with no resources except for interests that they cannot sell will be denied Medicaid. This new policy is dreadfully unfair. It makes no distinction between applicants who put their own real estate in joint tenancy intentionally to qualify for Medicaid and those who inherited or were given a joint interest. It also makes no distinction between property that has ready market value and property that cannot be sold for one reason or another.

To put the legal case for overturning the rule in a nutshell: It is arbitrary and capricious. DHS has carved out a class of applicants who will be denied Medicaid through no fault or action on their part, yet who are as deserving as other applicants who will be granted eligibility.

Many applicants will be able to maneuver around this new rule, with legal help. The simplest is to quitclaim their interests to the other joint tenants, if the applicant is willing to do so. There are ways to create Medicaid eligibility despite gifts within the five-year look-back. It is a cosmic joke that only those applicants with enough money to hire legal counsel will be able to qualify for this welfare program.

The new policy is so unfair that it cannot be upheld as rational rule-making by the courts. However, it will subject many families to dire hardship until it is struck down. If you or family members who may need care in a nursing home own real estate jointly with anyone other than a spouse, consult a competent Michigan Elder Law attorney now.

 

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

 

©2011 John B. Payne, Attorney