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Vermont’s Long- Term Care Waiver (continued from page 17) struck an extraordinary blow against the historical institutional bias of the Medicaid program. And by expanding services to a segment of its potential longterm care population, including individuals who would not otherwise qualify for Medicaid, 4 the state is truly taking an innovative, consumerfriendly approach to its long-term care model. But just as the obvious, prominent benefit of CRC is its blow against the institutional bias of Medicaid, the obvious, prominent drawback of CRC is the end of the entitlement to long-term care services for “high need” individuals. Federal law mandates that, at a minimum, states provide their Medicaid beneficiaries in need of long-term care coverage for nursing facility services, or home and community-based services if a slot is available in a state’s HCBS program. 5 However, under CRC, a Vermont Medicaid beneficiary who demonstrates a need for long-term care by meeting the high need clinical eligibility criteria may be forced onto a waiting list if funding is not currently available for services. 6 The state maintains that the vast majority of Medicaid beneficiaries demonstrating a need for longterm care will meet the highest need standard, which will entitle them to coverage for services. 7 Even if that is so, the fact remains that some high need individuals qualifying for coverage will not be entitled to receive services until funds become available. Vermont’s approach clearly is a more enlightened approach and broadens the dialog about possible methods of modifying health care approaches. Is it the Right Model? What is positive about Vermont’s approach is that it actually has any “pros” at all. Heretofore, the prevailing idea in both Congress and in states (e.g., Massachusetts, Minnesota, New Hampshire) has been to address the potential increase in demand only by drastically reducing the pool of eligibles through more punitive asset transfer rules. 8 Vermont is seeking to reduce or limit costs too, but is also striving to enhance consumer satisfaction and allow for expanded enrollment. Vermont’s approach clearly is a more enlightened approach and broadens the dialog about possible methods of modifying health care approaches. But, as outlined above, the plan contains some serious drawbacks, and it is not readily apparent whether the “pro” will outweigh the “con.” Obviously, much will turn on the frequency with which funds become exhausted, making services “temporarily” unavailable, for high need and moderate need individuals. The good news is that, with a five year lifetime (2009), the results of the waiver will be known before the Baby Boomers reach age 65. In the meantime, states’ efforts to redesign their long-term care programs will continue, which makes it imperative for advocates to capitalize on any opportunity to play a role in the development process. Both Kentucky and Florida have submitted demonstration waiver proposals to HHS within the last few months to redesign their long-term care programs Other states will certainly follow. There is little doubt that financial concerns will be the driving force behind these state proposals. However, if states seek only to cut costs and do not attempt, as Vermont has, to enhance consumer satisfaction and expand choice, their programs will fail. Pure cost cutting will result either in the denial of care to those in need or the damage of care to those receiving it, which in turn is likely to increase state costs instead of decreasing them. Additionally, forcing family members to fill a void created by a purely budgetcutting measure may produce a consumer backlash. As a result, nothing will be gained by either the state or its Medicaid beneficiaries. Therefore, to preserve the solvency of state budgets in the face of increased demand for expensive long-term care coverage, states will have to place on equal footing with their effort to reduce costs a directive to ensure that quality care is provided within a dynamic range of services. Gene Coffey, Esq., is a staff attorney with the National Senior Citizens Law Center in Washington D.C. Endnotes 1 “Section 1115” is the common designation for waivers granted under 42 U.S.C. § 1315, which is Section 1115 of the Social Security Act. This statute provides the agency the authority to waive a state’s compliance with certain provisions of the Medicaid Act if the state wants to implement a demonstration project that, in the judgment of (HHS), is “likely to assist in promoting the objectives” of the Act. Section 1115 waivers are generally more broad than their counterparts, Section 1915 waivers (42 U.S.C. §1396n). Section 1915 waivers are narrowly tailored to allow states to offer home and com- (continued on page 21) 20
Vermont’s Long- Term Care Waiver (continued from page 20) munity-based services so that some of those who are eligible for nursing facility coverage may avoid institutionalization. 2 The Vermont Long-Term Care Plan: A Demonstration Waiver Proposal to the Centers for Medicare and Medicaid Services, October 1, 2003 (pages 2-4). 3 The Vermont Long-Term Care Plan: A Demonstration Waiver Proposal to the Centers for Medicare and Medicaid Services, October 1, 2003 (page 4). 4 Like the highest need and high need categories, the moderate need category allows individuals with income up to 300% of the federal poverty level to qualify for coverage. But while federal law allows a state to provide coverage to individuals at that level of income if they need long-term care, 42 U.S.C. §1396a(a)(10)(A)(ii)(V) and (VI), no authority exists, absent the waiver, for having Medicaid provide services to individuals at that income who are merely at risk of long-term care. 5 42 U.S.C. §1396a(a)(10) 6 Because the state asked for a waiver of Medicaid’s reasonable promptness requirement, 42 U.S.C. §1396a(a)(8), the state may place a Medicaid beneficiary on a waiting list. 7 Standard for high need is the same as it was before, so, essentially, the state is requiring a higher level of need to prove entitlement to coverage for services 8 The state efforts have come in the form of Section 1115 waivers, none of which have been approved by HHS. With regard to the impact of one of Congress’ original proposals to change the transfer rules, the Congressional Budget Office (CBO) estimated that 120,000 individuals would have their Medicaid eligibility at least “delayed” as a result of the House of Representatives’ proposal. See Additional Information on CBO’s Estimate for the Medicaid Provisions in H.R. 4241, the Deficit Reduction Act of 2005, November 9, 2005. Discussions of Fees By Hugh K. Webster, Esq. NAELA Legal Counsel How many compete? What is the extent of that competition? Interesting questions perhaps... I would like to provide some further clarification on the topic of discussions of fees at NAELA events and on NAELA email discussion lists. It has been suggested that NAELA members do not compete with each other, and therefore there are no restrictions on how members interact. From a factual standpoint, of course, this is not true. NAELA members compete with other NAELA members every day. How many compete? What is the extent of that competition? Interesting questions perhaps, but completely academic ones to federal regulators who wish to pursue an investigation. I know because I have been through these investigations. And they can be extremely burdensome in terms of expenditure of time, energy, focus, and of course money. This is true for the association itself and for the members that are targeted as well. Also bear in mind that the Sherman Antitrust Act is not the only trade regulation statute. For example, the Federal Trade Commission Act prohibits, among other things, “unfair” trade practices. “Unfair” is essentially whatever the Federal Trade Commission decides is unfair, and the FTC does not have to show, or even allege, actual harm to competition. Further, associations of professionals are a favorite target of antitrust regulators. Organizations comprised of architects, physicians, engineers, social workers, dentists, etc. are some examples of those that have been investigated and successfully prosecuted (civilly) by the Department of Justice or Federal Trade Commission. What would the reaction of the DOJ or FTC be if they heard of a national association of attorneys that sanctions fee discussions during sessions at its meetings or on email discussion lists? Frankly, it would be like waiving red meat in front a pack of hungry dogs. Finally, of course it can be very useful for competitors, or non-competitors in the same industry or profession, to have information regarding what others are charging. This improves efficiency, etc. But the legal way to gather and disseminate this information - the way that has been sanctioned by the courts and the regulatory agencies - is by submission of data to a third party, such as an association, that then compiles the data and reports it back in composite form. The data can be organized in several ways, including geographically, but the rates of individual practitioners are not revealed. I hope this information is helpful. 21
Page 1 and 2: N A E L A NEWS National Academy of
Page 3 and 4: N A E L A NEWS National Academy of
Page 5 and 6: Are You Ready for Your 2:30 Appoint
Page 7 and 8: President’s Message By Lawrence D
Page 9 and 10: Executive Director’s Message By S
Page 11 and 12: Tales of NAELA Saved by the NAELA A
Page 13 and 14: Address Medicaid’s Institutional
Page 15 and 16: Address Medicaid’s Institutional
Page 17 and 18: Vermont’s Long-Term Care Waiver G
Page 19: a d v e r t i s e m e n t
Page 23 and 24: The Case Against Court Certificatio
Page 25 and 26: The Case Against Court Certificatio
Page 27 and 28: Chapter President’s Listing Arizo
Page 29 and 30: Introducing NAELA’s Newest Member
Page 31 and 32: NAELA Members in the News NAELA was
Page 33 and 34: Divorce Elder Law Style (continued
Page 35 and 36: MAY 2006 NATIONAL ELDER LAW MONTH S
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