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Important October BEM Changes

DHHS released new BEM language to take effect October 1, 2015. Click here to read them. Of particular note are the new provisions for long term care partnership insurance payments and care contracts.

As to the long term care insurance partnership, this concept has been addressed in prior blogs. What we learn from the new language is that the protection will only apply to payments actually made to or for the benefit of the insured. Meaning that the supplemental asset protections accrue only as the benefit is received (as opposed to simply allowing for a supplemental asset protection in the amount of the total benefit purchased).

The new long term care insurance language expressly precludes assets protected by the partnership policy payments from estate recovery.

The language regarding care contracts is more troubling. These changes arise out of the Jensen Court of Appeals decision, also discussed in prior blog posts here.

The new care contract provisions segregate contracts for personal care and home maintenance.

The presumption of gratuitous care only applies to relatives. However, and importantly, the requirements of having a Medicaid compliant contract applies to relatives and non-relatives equally.

The new provisions preclude any payments after the person receiving care is in a nursing home or “adult foster care home (licensed or unlicensed)” [I think they mean “assisted living facility”] = a big problem for professional care providers hired to supplement care particularly in ALFs.

For clients applying for Medicaid who have received personal care assistance, even through a professional agency, the new policy will require providing the contract to DHHS for review.


Important Ruling on Homecare Wages

Last week a Federal Appellate Court issued a decision that would guarantee minimum wage and overtime protections to home health care workers. So far the decision has received little attention, but if it stands, it is hard to imagine a decision that would have more dramatic impact on the care being provided to frail older adults and persons with disabilities. Read the decision here.

The practice of paying home care workers less than minimum wage goes back to a 1974 law exempting domestic homecare workers from minimum wage and overtime requirements. More recently, the Department of Labor issued rules that applied these wage protections to homecare workers. In this case, the Court decided that the labor department rules are not contrary to the existing law.

The decision would take effect January 1, 2016. However legal challenges are likely to delay that implementation.

Michigan is one of nine states opposing the Department of Labor rules. These States are understandably concerned with the impact on Medicaid budgets, as Medicaid home care services are largely provided by caregivers receiving less than minimum wage.

This issue that has been coming to a head for a long time, and raises many important considerations about how we, as a society, value elders. Direct caregivers for older adults are among the most difficult, demanding and yet poorly compensated jobs in America. The people who care for our elders are not respected, and as a result, the quality of care our elders receive is compromised. There is no doubt that low wages are a main reason that caregivers are hard to find, hard to keep, and often come with little training and questionable backgrounds. This is true with respect to in-home caregivers, as well as institutional caregivers where wage protections apply but where these jobs are nonetheless low wage and largely without benefits. Care-giving for the aged is a huge industry now, and will only increase with time. While it would be Pollyannaish to disregard real concerns about affordability and funding, particularly services paid by Medicaid, the first step in creating a competent workforce is to elevate the profession of care-giving, and the only way to do that is to provide benefits and competitive compensation.