The legislative process was essential in preventing the ill-conceived recovery expansion proposal from passing. PAELA was one of the professional organizations that opposed DPW’s previous expansion proposal. But under current law, the Governor unilaterally and without legislative oversight can implement a proposal like this to expand estate recovery. Powers of attorney can be created to deal with personal and health care decisions, or financial matters, or both. If we do lose the ability to make our own decisions, the power of attorney may become the most important legal document we ever signed. Your financial power of attorney document should not be a simple and standard commodity. The endemic problem with the above procedure is that the professional staff and administrators are employing an incorrect standard (the “improvement standard”) to determine whether the resident should continue to qualify for Medicare. Despite the regulation and the federal court cases, nursing facilities in Pennsylvania continue to impose the “improvement standard: as a matter of course.

Two recent federal court cases have held that the application of the “improvement” standard is incorrect. Standard forms may omit functions that could end up being essential to allow your agent to meet your needs and achieve your goals. In addition, On November 17, 2010 CMS published a final rule to update various aspects of the Medicare Home Health regulations which disavows the use of the improvement standard. Many people who use Blue Cross Blue Shield appear to have mixed feelings about it. Professional staff such as therapists and nurses, along with appropriate adminstrative staff will meet to discuss residents who are receiving Medicare Part A benefits. How can you ensure that this most important document will best meet your needs and goals if your agent is ever required to act? It needs to be prepared with your individual circumstances and goals in mind. When an individual who is 55 years or older receives Medicaid payment for nursing facility services or home and community based long term care, his or her estate becomes subject to the estate recovery rules. Dist. LEXIS 113550 (USDC Vermont, October 25, 2010), dealt with home health services. 2d 765 (Western District, PA, September 28, 2010, dealt with skilled nursing facility services and Anderson v. Sebelius, 2010 U.S.

Papciak v. Sebelius, 742 F. Supp. Now, Pennsylvania State Senator Kim Ward (R – Westmoreland) has introduced legislation that would ensure legislative oversight before any future DPW proposal to expand estate recovery could be implemented. Senator Ward is the well-respected Chair of the Senate Aging and Youth Committee and a member of the Senate Public Health and Welfare Committee, so her legislative proposal would appear to have a good chance to be enacted. Legislation has been introduced (Senate Bill 901) that would eliminate the Governor’s authority to expand estate recovery without legislative oversight. Try to avoid having standardized form document or one that limits your agent to the authority described in a state law. A power of attorney allows you (the “principal”) to give someone else (your “agent”) the authority to act and make decisions for you in you are ever unable to act on your own behalf. For our reader, who is a few years older than me, this is a decision that he has to make very shortly.

The initial decision as to whether a resident needs skilled care is made by the staff at the nursing facility. They will be told that the resident has a right to appeal the decision and given the number for the Quality Insights Organization (QIO) to call if they want to exercise this right. Based on the therapist’s determination, the decision will be made to cut the resident’s Medicare benefits the following week. Administrative staff of the facility will then notify the resident’s representatives of the decision to cut Medicare. While facilities may vary somewhat in the procedures used in making Medicare eligibility determinations, the following is typical. Depending on the the amount of paperwork you have held on to, you may find satisfaction in starting with what you can toss or shred immediately. In the past, truckers and heavy vehicle operators had to actually go into the IRS and file the paperwork personally.