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Additional Thoughts on Healthcare Costs

In my last post I suggested there are things to think about – things that will need to be resolved through a political process that seems to have little stomach for “cutting benefits to retirees” – specifically, deciding how to pay for care for an aging population, while at the same time healthcare costs are rising and the quality of employment opportunities for those who are paying the taxes are declining. It is not a pretty picture. The same dynamic of course implicates our Social Security system. The current trajectory is unsustainable.

As I indicated below, one answer is to make all government healthcare services means-tested. Is it right that Bill Gates gets healthcare paid by the government because he paid taxes (probably a lot of taxes) and therefore is qualified for Medicare? Should rich people pay more? And if that door opens further (as discussed below, it has already been opened), how long before middle class retirees are in the same boat, and healthcare becomes just another system of wealth redistribution?

Assuming we simply won’t have enough money to keep this house of cards standing, one answer, or one part of the answer, may be cultural. Do we start believing in assisted suicide? The entry of California into the assisted suicide arena a couple months ago should have been louder. It is one thing for Montana, Oregon, Vermont and Washington to allow physician-assisted suicide, but California is a whole other matter. That’s big time. Like it or not, physician-assisted suicide is coming to your state sooner or later, and probably sooner than you think.

The thing about assisted suicide is that it brings with it the implication that there may be a point in life when staying alive is no longer in our best interests. Sometimes things get so unpleasant, the person would be better off dead. As shocking as that sounds, I can’t count the number of clients who have told me that their family member would not want to be alive in their current situation (if that had the capacity to express themselves).

So if we move from a culture that places a premium on quantity of life to one based on the concept of quality of life, will we then accept the proposition that we live life as long as it feels good and get out before or when the ugly part starts? That would certainly reduce healthcare costs. Healthcare for those with chronic conditions, particularly those in institutional care, makes up a disproportionately large part of the healthcare budget. The big challenge would be, where money (healthcare costs) is involved, how would we keep what may be a sincere change in cultural perspective from becoming a tool of the insurance companies – or are we fooling ourselves? Are cultural values always nothing more than expressions of societal convenience?

More questions. Few answers. Just thoughts. I know.


The Medicaid Planning Question

I get invited to present to a lot of groups about various topics – one of the most popular topics being planning for long term care. It is an important topic because there is so much misinformation and so many misconceptions about it. As a result, giving people a neutral non-sales oriented place to get information and ask questions is very needed.

Much of what people believe about this topic is a product of what we call the “chicken dinner seminar” circuit – those so-called “educational programs” where Medicaid and VA concepts are tossed out authoritatively – but in a manner that is designed not to enlighten – but rather create fear – so that the presenter can push products – annuities and irrevocable trusts currently being the most popular.

So, at a recent program I got the question I often get: ‘You’re office helps people use schemes to get the government to pay for their care – but what about personal responsibility?’ Or said another way: ‘Why should the taxpayers pay for your clients to get care when they have resources that could be used?’

It’s a good question – a natural question. I have become comfortable answering this question. The challenge is always to respond in a way that does not to make person asking feel uncomfortable.

My answer is twofold: first, the ‘what lawyers do’ response; and second, the ‘disease discrimination response.’

Answer part 1: Medicaid planning is just a lawyer explaining the law and how to use it to the advantage of the client. Just like rich people do. I usually say – just like George Bush or Al Gore do when they talk to their lawyers about planning to avoid taxes (capturing an icon from both sides of the political spectrum so that it doesn’t seem like this perspective is a function of my own politics). So, I suggest, if rich people can do it, why can’t middle class people talk to lawyers about how to use laws to their advantage?

Answer part 2: More importantly and somewhat more complicated is the idea of disease discrimination. Medicaid pays for long term supports and services – which by a quirk in history is a type of healthcare that is not covered under any of the parts of Medicare.

When the two houses of healthcare were created 50 years ago, Medicare was intended to provide healthcare for all people who worked and paid taxes, but in doing so, it was oriented to skilled care, hospitals and doctors visits (the type of care that dominated the healthcare systems at that time.) Medicaid was for poor people and covered all types of costs. Over time, long term supports and services became an important form of healthcare, mainly because people began living longer and with longer life came the epidemic of cognitive impairments, Alzheimer’s disease and the other forms of age-related cognitive impairment. Because the type of care that was required to provide for people with these medical conditions did not fit into the traditional concepts of skilled care, hospital care, and doctors visits; it fell onto Medicaid to cover these costs.

The result is that in the past 20 years or so, older Americans are increasingly finding that the healthcare they need is not covered by Medicare (or the supplemental private insurance policies that are all triggered by the same definitions as Medicare), and so they began to access Medicaid. In recognition of this development, Medicaid policy evolved to create a whole subset of programs specifically oriented to long term care. Over time these programs developed special rules for persons needing this type of care, including spousal protections and divestment rules. Despite these developments, Medicaid eligibility for long term care remains a program based on the concept of impoverishment, with countable and exempt assets, etc..

As I like say to the people who ask the question, and the many who are too shy to ask: My mother had cancer. It was hard on the family. But she was a retired teacher, so she had good insurance, and nobody ever asked my father how many cars he had, or whether he had made any gifts to his children in the past five years. If she had contracted Alzheimer’s, the situation would have been much different, and that difference seems to have no logical basis. Why do people with healthcare needs arising out of some types of diseases have their care provided by their government healthcare programs, while others do not?

That is how I answer this common question.

A related question, but usually not asked, is: Where do we go from here? How do we fix the system? Assuming all forms of illnesses should be treated similarly, should long term care services become a Medicare benefit? Or, should Medicare become more like Medicaid, with all services having some component of impoverishment? Recent developments in Medicare, including Part B premiums being increased for persons with higher incomes, and Part D benefits having asset tests that impact premiums and coverage; suggest it is more likely that we will see the latter. And that would be consistent with the reality that more and more people are getting old, and healthcare costs are only going to continue to rise.

The government healthcare systems that were created in the 1960’s when only about half the people in the system lived long enough to receive benefits, and those that did typically only lived a few years thereafter, is ill-suited for a world in which people commonly live for 30-40 years after they reach the age when the benefits begin, and in which healthcare has evolved to provide amazing, but amazingly expensive, forms of care that continue extend our lives.

Food for thought I hope.


The Veteran (with love to Our Veterans on this Veterans Day)

He came in using a walker – clearly shaking, very unsteady – with extensive bruises on both arms.  When I saw on the questionnaire that he was 71 years-old, I was surprised.  I would have guessed he was older.  He was accompanied by a friend/caregiver.

As the meeting progressed I came to understand that another attorney had sent them to see me to ask about how best to sell a house that he no longer occupied: land contract, lease with option to purchase, or outright sale?  We discussed tax implications, Medicaid implications, etc..  I offered my advice and told him I would write a letter to his attorney (the attorney who referred him to me) and explain my recommendation.  That was it.  I was done.

I did my usual “nice meeting with you” handshake to the caregiver signaling that it was time to go.  But the client didn’t get out of his chair.

A little more small talk about fishing, and I tried again.  Again he sat.  He wanted to tell me something more.  So I sat back down, and when it was clear I was settled and looking directly at him, he began.

I had been previously advised that this client had a 100% service related disability. Now I learned that his shaking was from Parkinson’s, a result of exposure to Agent Orange, and the reason for his disability.  I learned that he had been a caregiver (24 x 7) for his wife until she died.  He explained that she was “very good about it” – “it” being helping him when he awoke with nightmares from Vietnam.  He said quite plainly that there were things that happened in Vietnam that he never told anyone, and that he would take with him to his grave.

The client meeting had gone rogue.  What he was telling me had nothing to do with the legal issue he presented.  He kept going.

He worries about the toxins that the Gulf War veterans have been exposed to.  He wonders now, if he had known what his service would do to him, whether he would have served or deserted.  He still wakes up with nightmares.  I said something awkward like: “Your Country asked you to serve and you believed in them.”  He nodded and went on.

I was just a child during the Vietnam War. I’ve heard.  I’ve seen the movies.  But sitting there, looking into those cloudy blue eyes; I felt like I had somehow been transported out of my office, that suddenly, in the middle of a routine work day, I was talking to someone who was not with me in the room – rather, this client was still in Vietnam – still reliving episodes that occurred more than 50 years ago. I looked at him and now I could almost see him as a young man.  The whole thing was haunting – maybe “raw” is a better word to describe it.

At some point he became quiet again.  He was finished.  The caregiver helped him back up to his walker.  The client said goodbye and thanked me for my time and advice, and left.  I was back in my office, back in 2015.  As for my client, I’m pretty sure he never came back.

Capacity to Gender Identify

Talk about cutting edge cases…

How about this one out of Jackson County: 60 year-old biological male with history of developmental disabilities and psychiatric events, decides he wants to become a woman. Family recognizes he has a history of gender confusion but believes that this recent push is the function of his trying to impress a certain caregiver and get attention – and that s/he doesn’t have the capacity to fully comprehend the implications of the decision.

The matter comes to court as a petition for a DD Guardianship, for an adult who heretofore has functioned independently with supports, but without a court appointed fiduciary.

This tees up the question: What is the standard for capacity to identify one’s own gender? Intuitively one would expect that capacity to gender identify would be one of the lowest standards in the law (like capacity to marry); but what if it is a passing delusion of a fragile mind? It entails serious medical implications and is irreversible.

Even better that the case was handled by two wonderful young lawyers: Chris Smith of CT’s Southfield Office, an officer of the Elder Law and Disability Rights Section of the State Bar v Rick Mills with Marcoux Allen in Jackson (and formerly of CT), a member of the council of the Probate and Estate Planning Section of the State Bar. The case was well pled and prepared on both sides.

Ultimately, the trial Court adopted the recommendation of the court-appointed expert to appoint a neutral guardian with specific instructions to investigate the extent to which the desire to transgender is fully appreciated by the man/woman who is the subject of the petition. Kudos to Dr. Lisa Ficker, psychologist out of the Wayne State University Institute of Gerontology for an excellent report.

Reasonable result. Great issue. Makes you think.


The Romance of the Law

swear in

Friday I attended the swearing in of my daughter – that is, she is now a lawyer – like me.

The ceremony is full of high-minded thoughts, an oath that includes archaic phrases, and lots of hugs and smiles.

In the daily practice of law it’s easy to get caught up in the complexities of our cases, the demands of our clients, and the tensions we often have with fellow attorneys. But there are times when we cannot help but reflect: What is my role in this situation? What is the right way to advocate for my client? Why am I given these special powers and privileges?

At these events, more than any others, the lawyers in the room are reminded – reminded of our obligations on how to treat our clients, how to interact with fellow counsel, how to conduct ourselves when we appear in front of judges, and even how to live our lives outside the practice. Although we may, at times, forget the oath and the ceremonies that allow us to make a living, all lawyers share these moments and are indelibly imprinted by them. It isn’t that we are better than people who make their livings in other ways – but we certainly see things differently.

Over the years that I have practiced law, I have only become more appreciative of the special role we play in our communities, and the special ways we do it. In a profession defined by conflict and confusion, these unique rules and obligations are what allow us to help ourselves and our clients find resolution, order and peace. There is something truly magical about it.

I welcome my child to this romantic world. May she blossom.