Central Florida Estate Planning Council March 20, 2014 Presentation by: Emma Hemness, Esquire, BCS, CELA Law Office of Emma Hemness PA 309 N. Parsons Avenue Brandon, Florida New Challenges to Advocacy in an Elder Law Practice: Florida's LTC Medicaid Managed Care Program and other stuff

Florida’s Managed Care Programs That Impact Elderly

An Overview of the LTC SMMC Florida’s LTC Medicaid Managed Care Program Legislation passed in 2011 Enrollment: Mandatory for all LTC recipients ADA/ALE/Diversion/CDC+: all being consumed into “Big Waiver” New enrollees: Seniors, plus age 18 or older and eligible for Medicaid by reason of a disability AND determined by CARES to require nursing facility level of care CMS approved February 1, 2013 Statewide implementation began August 1, Regions: February 1 and March 1 upcoming MMA portion to begin May 1, 2014 (more on this later) Throughout this timeline, reliable information for senior consumers lacking Formation of the Foundation for LTC Solutions LLC, a senior advocacy organization (introduction)

The Foundation’s Experts Three (3) Florida Bar Board Certified Elder Law Attorneys: Emma Hemness, Rebecca C. Bell, and Twyla Sketchley Thousands of unpaid, volunteer hours, advocating for Florida’s seniors. Providing 1. Objective information; 2. Concise explanations; 3. Conflict-free advocacy. Consulting with Families as well as Providers Legal Expertise in Grievances and/or Fair Hearings

Senior Advocacy Organization “Like” us on Facebook Visit our Website questions, comments, concerns

LTC Managed Care Services

Case Management Plan provides case management to ALL participants Includes nursing home residents Oversees care for participants in the plan Integrating care across services

Rebalancing To Community Managed care is to: Facilitate transition of nursing home residents to the community Emphasize home-like environment and community integration Increase care coordination and case managed across the care continuum Increase personal goal setting Expand participant directed care

Rebalancing To Community Capitated rates will be adjusted annually to “encourage” Plan to shift services from NHs to community-based care Plans get financial incentives to shift 2-3% from NHs each year Shift will continue until 35% of NH population is “rebalanced” to the community AHCA has set 2% as goal for 1 st year “Granny Dumping for Bonuses”

Transition from NH to ALF Rumors and misinformation is widespread Some bad information is coming from “reliable” sources Be aware that in order for a senior to receive Medicaid benefits in an ALF or in the home (without being on the LONG waitlist first): resident must receive ICP Medicaid approval before moving from NH AND reside in NH for at least 60 days These requirements were confirmed by the Foundation in a telephone call with Cheryl Young, LTC Bureau Chief, Department of Elder Affairs on Friday, January 10, 2014

Waivers & Enrollment Caps Community-Based Services are NOT Entitlements; Waitlist for Community-Based Services will continue to exist Florida LIMITS # of seniors access to Medicaid in the home or in the assisted living facility Cap on Enrollment for next FIVE (5) years! 37,000 seniors AHCA statistic: 36,245 current recipients Waiting List: 34,559

Challenges to Advocates under SMMC New challenges -- multiple level advocacy Enrollment Decisions – Selection of Plans See the Foundation’s 40 page Consumer Decision Making Guide Decision Tree – next slide Waiting List Access Rebalancing in the hands of the Plans Complaints – reduction, denial or termination of services Grievances Fair Hearings Plans of Care Quantity of services/Quality of services Comprehensiveness of services/Appropriateness of services Location of services

Critical Info on Enrollment When to Enroll Follow the Decision Tree Look for the Regional Roll-out How to Reach the Enrollment Broker “To Be or Not to Be” the Designated Representative Ask for a face-to-face meeting AHCA’s DR form (see next slide) Exercise Your Rights – Do not allow Auto Enrollment Key Time Periods 30 day to choose 90 day to change Good cause change – WATCH OUT 60 day open enrollment

This form can be completed by a competent Medicaid Recipient. It must then be returned to Agency for Health Care Administration (AHCA). It can be Faxed: (850) ed: health.com Mailed: Agency for Health Care Administration P.O. Box 5197 Tallahassee, FL 32314

Submit Complaints (Not Grievances) On Line

Changing plans after 90 days If enrollee is unhappy with their plan after 90 days of enrollment, enrollee must have a “good cause” reason to change Good cause includes: enrollee or plan moves, enrollees’ health care provider not in network, marketing violation, poor quality of care, delay or denial of services, lack of access to services

Changing plans after 90 days (con) How to request a “good cause” change: Enrollee calls Choice Counseling at Warning: Make sure the choice counselor follows the proper procedure by having the Agency for Health Care Administration (AHCA) make the “good cause” determination; if denied a Plan change request, enrollee should receive a written denial notice; enrollee can appeal through Medicaid Fair Hearing

Denial, Reduction, Suspension or Termination of Services If an enrollee is unhappy due to a change in the amount or type of services, this can be a violation of the law Enrollee has 2 choices when receive a Notice of Action 1. File an appeal with the Plan w/in 30 days OR 2. File a request for Fair Hearing with DCF w/ in 90 days

Continuing Services Enrollee must request an appeal with the Plan within 10 business days of the mailing date of the Notice or the intended effective date of the action, whichever is later. OR Request Fair Hearing within 10 days of the date of notice of action. Enrollee must request extension of benefits

Filing for a Fair Hearing Four different ways: To phone, call (850) To fax, fax to (850) To write: Mail to Department of Children & Families, Office of Appeal Hearings, Building 5, Room 255, 1317 Winewood Boulevard, Tallahassee, Florida To

“Downhill” Transition – an explanation Rebalancing: Identifying seniors capable of NH transition Legislative goal Georgetown University statistics AHCA’s goal for 1 st year Critical Impact/Accessibility through Transition Waiting list for HCBS Longer … and longer … and longer …

“Uphill” Transition – an explanation Plans of Care Quantity and Quality of Services Example: Assisted Living Facility Resident What is the Blended Rate?

The “Poor” Advocate Complaints cost $$ Evaluations of Plans of Care cost $$ Getting Paid … is VERY nice! Plan ahead. WE (you) don’t want to be a “poor” advocate …

Medicaid Income Criteria Florida’s Income Cap – $2163 gross monthly (2014) Countable Income (all non-exempt income): Applicant: Gross monthly income is capped at $2, Are Veterans benefits exempt: yes? or no? Applicant is disqualified without an income-cap trust -- A legal document Restrictions on who may create it, other than the Applicant Intersection with new DPOA statute in Florida Excluded Income: PNA $35 and UME Community Spouse: All income is excluded. Community Spouse Income Allowance (until 7/1/2014) Maximum: $ /Minimum: $ Income capped by formula from Applicant to spouse Alternative: “Unlimited “Monthly Income for Community Spouse to live on: By legal process with Court Order

Too Poor to be on Medicaid A Sad Reality …Too Poor to be on Medicaid in an ALF Room & board comes 1 st No spousal diversion No $$ for UME (Medicare supplement premium etc.)

Medicaid Resource Criteria Countable Assets (all non-exempt assets) Applicant's Resource Allowance: $2000 in countable assets. If income is less than $843, then $5000 in countable assets. Community Spouse Resource Allowance: $117,240. Excluded Assets: One vehicle less than 7 years of age Multiple vehicles greater than 7 years of age Irrevocable pre-need funeral arrangements Burial plots for Applicant and immediate family A primary residence with the value capped at $543,000 for single Applicants Life insurance with the face or cash value capped at $2,500 Burial expense fund capped at $2,500 Personal effects and household goods Retirement accounts (only under special circumstances)

Medicaid Penalizes Transfers Penalties and Disqualifications from Medicaid coverage: Any transfers of income or assets to a child, church, or charity within the lookback period Lookback period: Total value of all gifts made after January 1, 2010 up to time of application Penalty Divisor: $7,638 (for applications filed after 9/19/2013)

Transfers withOUT Penalties Anything for which one has received FMV compensation Exempt transfers Anything to disabled child or to a trust for disabled person Home to child if 2 years’ residency Any amount of $$ to d4C trusts (pooled trusts) Can be spent within the lifetime of the Medicaid recipients Advocacy Fund

Your Unique Position within Advocacy Positioning on Wait List will become more critical Assistance with completing the 701S Complexity of 701D instructions (for 701b) Counter-analysis of new Plan of Care Adequate quantity/quality of services Accurate quantity/quality of services Appropriateness of community setting Expert “testimony” in Fair Hearing/Plan Grievance process

“Just when you thought it was safe …” Managed Medical Assistance Second Half of Medicaid Reform Your residents must choose medical assistance plan now Region 5 and Region 6 Roll-out June 1 Pre-welcome letters soon All LTC Plans are MMA Plans Except American Eldercare

Hot Topic: Unlicensed Practice of Law What is considered the practice of law? Giving legal advice Counsel clients as to their rights & obligations under the law Preparation of legal documents including contracts, powers of attorney, trusts, wills, etc. What is done in which context matters Who commits unlicensed practice of law? – Anyone who is not admitted to practice law in the State of Florida – Attorneys who are suspended or disbarred from practice – Attorneys who assist those engaged in the unlicensed practice of law Doesn’t meet with client Not paid by client Directed by someone other than client

UPL in Medicaid Planning Drafting & Preparing Legal Documents Drafting Income Only Trusts a/k/a Qualified Income Trusts (QIT) Drafting of Personal Service Contracts Drafting of Powers of Attorney Advising Clients Regarding Actions to Take With Regard to Property in Compliance with Medicaid Rules & Regulations “Marrying” a client’s specific facts to the Medicaid rules AND providing advice on what to do next

What is NOT UPL in Medicaid Planning? For example, the “stuff” stated before … PLUS CAN assist client is collecting the documentation needed to support a Medicaid Application CAN assist client in organizing the documentation needed to support a Medicaid Application CAN assist with submitting Medicaid Application CAN assist with submitting requested documentation to support Medicaid Application CAN act as Designated Representative CAN assist with Fair Hearing (*State likes this because State wins more often when no attorney involved)

UPL is a crime! 3 rd degree Felony!!

State or Industry Regulation? Medicaid Planners NONE Attorneys Florida Bar – Character Investigation – Examination – Required Education Rules Regulating the Bar – Can’t claim expertise without being an expert – Can’t make guarantees – Conflicts of Interest Prohibited – Confidentiality Required – Fees Must Be Disclosed – Limitations on Advertising – YOU CAN COMPLAIN!!!

Qualifications? Medicaid Planners NONE Can be felons Can have other professional licenses revoked for bad acts No certainty of knowledge Generally have no liability insurance Attorneys Florida Bar – Licensed in Florida – Discipline History is Public – License Status is Public Education Required – Had a criminal and financial background check to become a member – If Board Certified they have insurance and have expert qualifications

Problems with UPL Benefit Ineligibility Improper Sale of Financial Product Unnecessary Planning Undertaken Bad Documents Privacy Violations Exploitation/Theft/Use of Identity Creates liability for those working with those engaging in UPL Negligent referral Tortious interference with business relationship Damages the Reputation of “Good” Advocates!

What MediCARE coverages are impacted? Claims determinations by Medicare contractors involving [maintenance cases]: Skilled nursing and skilled therapy services affecting: Skilled nursing facilities Home health Outpatient therapy Settings where no improvement may be expected, yet skilled nursing and/or therapy services -- to prevent or slow a decline in condition -- are necessary because of the particular patient’s special medical complications or the complexity of needed services. Breaking News: CMS revisions – No to “No Improvement Standard”

Jimmo Settlement required two main actions (clarify & educate) Within one year of settlement, CMS had to: Issue Medicare Manual revisions Revising relevant program manuals used by Medicare contractors Reworded for clarity … so as to reinforce the intent … of existing, longstanding policy Improper rule of thumb was being applied Coverage of therapy “…does not turn on the presence or absence of a beneficiary’s potential for improvement from the therapy, but rather on the beneficiary’s need for skilled care.” Federal Law: 42 CFR CH. IV s (c) o“The restoration potential … is not the deciding factor in determining whether skilled services are needed. Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.” CMS is “clarifying” …

Emma Hemness, B.C.S., CELA Florida Bar Board Certified In Elder Law Licensed in Florida Law Office of Emma Hemness P.A. 309 N. Parsons Avenue Brandon, Florida Telephone: (813) Facsimile: (813) Website: Law Office of Emma Question & Answer