Open Enrollment! NCOA Considerations

The National Council on Aging (NCOA), the national voice for every person's right to age well, is encouraging all individuals with Medicare to evaluate their coverage during this year's Open Enrollment, which runs from October 15 through December 7, 2024, for coverage effective in 2025.

The Annual Enrollment Period is too often a lost opportunity for people with Medicare. Research shows that only about 10% of individuals use this chance to switch plans. The result is they can end up overspending for coverage they don't need or use.

"This year, the stakes are higher than ever," said Josh Hodges, NCOA's Chief Customer Officer. "With inflation at a 40-year high and a recent U.S. Census report showing that poverty increased among Americans age 65 and older, it's critical that people with Medicare use this time to make sure their plan meets their budget and their health care needs."

"When assessing options, we recommend individuals look at cost, coverage, and convenience," Hodges said. "Every year, Medicare plans change, and so do people's personal health situations. Medicare can be confusing, but NCOA offers trusted resources to help."

BenefitsCheckUp® is an NCOA tool that helps people with Medicare determine if they may be eligible for the Medicare Savings Programs and Medicare Extra Help—two programs that help cover health care costs for people with low and moderate incomes.

Another trusted resource is the State Health Insurance Assistance Program (SHIP) network. There are SHIPs in every state, and they provide local, in-depth, and objective insurance counseling and assistance to Medicare-eligible individuals, their families, and caregivers.

Of course, you can also speak with a private independent Medicare Specialist.

For more information, please visit www.ncoa.org/Medicare.

PRIMARY SOURCE: Save Money by Evaluating your Medicare Plan, Today's Caregiver (last accessed October 15, 2024)(slight alterations added).

About NCOA  

The National Council on Aging (NCOA) is the national voice for every person's right to age well. We believe that how we age should not be determined by gender, color, sexuality, income, or zip code. Working with thousands of national and local partners, we provide resources, tools, best practices, and advocacy to ensure every person can age with health and financial security. Founded in 1950, we are the oldest national organization focused on older adults. Learn more at www.ncoa.org and @NCOAging. 

Violence as a Consequence of an Estate Plan- Can Planning/Drafting Help? A Simple Provision in a Deceased Mother's Will Sparks a Son's Shotgun Rampage Causing the Death of Four

You can press play on the video, but if you would rather watch the video in a separate tab/window (recommended) click the link below:

https://youtu.be/2N0uuRFPngw

In this video I discuss violence, threats of violence, and retaliation as a consequence of estate planning choices, and whether planning and drafting can avoid or protect a family from such a tragic consequence.

Trigger warning: the subject matter considers heartbreaking examples of violence including death. This video reports a recent tragedy in which a simple provision in a deceased mother's will sparked a son's shotgun rampage, causing the death of four, and discusses estate planning and administration considerations to prevent similar violence and harm.

The case example discussed is from a report in the Daily Mail, "Simple request in Long Island woman's will sparked her son's devastating shotgun rampage on siblings." (last retrieved 10/10/2024). The Daily Mail article was brought to my attention by Professor Gerry W. Beyer's article, similarly titled.

The video discusses, among others, the following considerations and strategies in an effort to reduce or eliminate the threat of tragic outcomes:

• Drafting Considerations;

• Considerations Regarding Communications with Family;

• Securing Documents;

• Physical Security;

• Identifying/Reporting Threats/Troubling Behaviors, Mental Illness & Grief;

• Logistics of the After-death Family Meeting including Timing and Location.

The video highlights the importance of worst-case scenario planning, and keeping a continuing relationship with a trusted advisor with whom such topics can be discussed and considered openly and thoroughly.

Identity Theft: Credit Monitoring and Freezes (With Links to Credit Agencies)

While you can never definitively protect yourself from identity theft, there are steps you can take that make it harder for criminals to access and use your sensitive information. One such step is placing credit freeze requests with all three credit bureaus.

Credit Freeze vs. Monitoring

Credit monitoring involves scrutinizing your credit report for changes. These changes could include legitimate and/or fraudulent credit inquiries, new credit accounts, a new reported address or an account that has been turned over to collections.

There are credit monitoring services that will automatically notify you of changes to your report for a fee, or you can monitor your credit for free by requesting and reviewing your reports regularly. However, the disadvantage is that both these approaches are purely reactive. Monitoring only notifies you that you have already fallen victim to identity theft.

Preventive measures, such as a credit freeze, provide much better protection. Also known as a security freeze, this measure blocks access to your credit report and other information, thereby preventing new account fraud, which occurs when someone applies for new credit using your identity.

When someone submits a tenant application or credit application (for a loan or credit card), the creditor will request a copy of the applicant's credit report. If the credit report is blocked, then the creditor is unable to review it and will typically deny the application. Therefore, a credit freeze is a method of stopping fraudulent activity before it occurs.

Who Should Freeze Their Credit?

Data breaches are increasingly common and the likelihood that a person’s credit report and other sensitive information have already been exposed is high. Regardless, it is best be proactive about preventing identity theft, especially if you rarely need to grant a new creditor access to your credit activity and history. I strongly recommend that all consumers consider placing security freezes on their credit since recovering from identity theft can be a long and difficult process, and though there may be little expense resulting from a breach, whatever expense there is is almost certainly greater than the time expense necessary to implement a freeze.

When it comes to seniors and their family caregivers, extra protection is crucial. Seniors may suffer periodic long or short term incapacity or illness, during which they are unable to monitor their own credit report.  Seniors may be more distracted by grief and loss and are more susceptible to periodic or sustained cognitive impairment. Caregivers, too, deserve attention.  A busy family caregiver may not have the time or energy to monitor their own credit report, let alone their loved one’s credit activity. A credit freeze provides invaluable peace of mind.

A certain group of vulnerable consumers, regardless of age,  which includes incapacitated individuals and those who have been appointed a guardian, should absolutely be protected by a credit freeze. Since these consumers are unable to monitor their own credit or protect themselves from fraud, caregivers with durable financial power of attorney (POA) or court-appointed guardianship can request security freezes for their on their behalf.

How to Freeze Your Credit

The three nationwide credit reporting companies are Experian, Equifax and TransUnion. You must contact each of these bureaus to request separate freezes. Freezing security freeze with one of them is not sufficient, since creditors do not report to all three.

Each credit bureau permits consumers to request a security freeze online, by phone or by mail. You may also temporarily lift a freeze (aka “thaw” your credit) and permanently remove a freeze via these methods using the account and/or personal identification number (PIN) you have established with each bureau. To help you get started, the webpages and contact information for the three bureaus are listed below.

__________________________________________________________________

Experian Credit Freeze

1-888-EXPERIAN (1-888-397-3742)

Experian Security Freeze

 P.O. Box 9554 Allen, TX 75013

 Experian Credit Freeze Application

You can find a complete list of information/documentation that must be submitted with your written request at Experian.com.

__________________________________________________________________

Equifax Credit Freeze

1-888-EQUIFAX (1-888-378-4329)

1-800-349-9960 (automated line)

Equifax Information Services LLC

P.O. Box 105788

Atlanta, GA 30348-5788

Equifax Credit Freeze Application

When submitting a request by mail, you’ll need to fill out an Equifax Security Freeze Request Form and include copies of proof of identity and proof of address documentation.

__________________________________________________________________

TransUnion Credit Freeze

1-888-909-8872

TransUnion

P.O. Box 160

Woodlyn, PA 19094

Transunion Credit Freeze Application

Written requests should include your name, address and Social Security number as well as a six-digit PIN to associate with your TransUnion freeze.

Nursing Homes Found Guilty in Criminal Understaffing Case= Individual Defendants Acquitted

In a rare case in which a nursing home business faced criminal charges over staffing misconduct, two Pennsylvania facilities owned by Comprehensive Healthcare Management Services were recently found guilty of healthcare fraud and other crimes.

Prosecutors alleged two different schemes to enrich the nursing homes’ operations. In the first, leaders were accused of falsifying payroll documents to make it appear the nursing homes were meeting required staffing levels, including having non-working direct care staff clock in for shifts they never intended to work. In the second, administrators were accused of changing assessments to make it appear patients were clinically depressed or needed more therapy as a means of delaying discharge and driving Medicare or Medicaid reimbursements.  

Both schemes appear to be occasional, if not common, practice of some nursing homes.  The Trump Administration, for example, began demanding payroll records of nursing homes, because CMS found that some nursing homes misrepresented staffing levels on routine reports. Moreover, the financial incentive of these institutions to misrepresent a patient's condition or need for treatment, underlies many of the ongoing battles to ensure better quality of care for patients.  

After five weeks of testimony in the complicated case involving Brighton Rehabilitation and Wellness Center and Mt. Lebanon Rehabilitation and Wellness Center, the jury returned verdicts against the institutions charged. The US Attorney’s Office for the Western District of Pennsylvania also prosecuted five company and facility leaders for their roles in a scheme that led to overbilling; the jury found all five not guilty.

Brighton Rehab itself was found guilty of healthcare fraud and five counts of falsification of records in a federal investigation, while Mt. Lebanon was found guilty of one count of falsification of records related to healthcare matters and three counts of falsification of records in a federal investigation. The nursing home defendants are scheduled to be sentenced in May before US District Judge Robert J. Colville.

According to Kimberly Marselas, reporting for McKnights' Long Term Care News, neither prosecutors nor defense attorneys offered a solid explanation why the jury reserved its convictions for the corporate defendants. US Attorney Eric Olshan, nonetheless, assured told McKnight’s Long-Term Care News that his office would pursue similar cases in the future, if warranted:

“Our legal system entrusts the jury with making determinations of guilt, and as in all cases, we respect the jury’s verdict. Today, the jury held the two corporate defendants criminally liable for a total of 10 counts of making false statements and obstructing CMS’s critically important work of ensuring that nursing facilities comply with the law.  This office and our law enforcement partners will continue to seek accountability for any individual or business that pursues profit through deceit and does so at the expense of vulnerable members of our community.”

Several counts in the indictment carried up to $250,000 in fines, or jail times in the case of individuals. In a press release issued by the US Attorney’s Office , prosecutors said the companies faced a maximum of five years probation, $500,000 in fines, or both, on the counts for which they were convicted.

According to McKnights, 

"Brighton, with 589 beds, is one of the state’s largest nursing homes and was plagued by problems during the pandemic. The facility was hit with at least  $62,000 in fines for infection control deficiencies, and the state later selected a temporary manager to come in and clean up operations. 

The 121-bed Mt. Lebanon facility also has had its share of problems, including a 2-star overall rating and an abuse citation noted on the Care Compare site.

Both facilities are managed by Comprehensive Healthcare Management Services, an entity affiliated with Ephram “Mordy” Lahasky. He has a 10% direct ownership stake in Brighton, while Halper has a 12% ownership stake.

Attorneys for the individual defendants framed the case as one of sloppy record keeping and government malfeasance, rather than intentional fraud, TribLive reported.  The Pittsburgh Tribune-Review reported that attorneys also attacked the credibility of 20 former nursing home employees as each having an axe to grind: some were fired, others quit, and some were offered immunity in exchange for their testimony.

Attorney Kirk Ogrosky represented Sam Halper, Brighton’s CEO and 12% owner and an officer at Mt. Lebanon. Orgosky argued there was no evidence Halper was involved in ordering or completing incorrect staffing records but instead told the jury that a handful of staff members came up with a scheme to cheat the buildings’ corporate owners.

“Throughout this case, all defendants cooperated with the US Department of Justice in every way possible. Yet, DOJ pursued individuals without regard for the truth,” Halper said in a statement shared with TribLive. “Thankfully, the jurors were able to hear the evidence and find that the facts did not support DOJ’s claims.”

Regardless, the case is representative of just how complicated is the challenge to ensure care quality,  and just how difficult it can be for the government, even when properly motivated, to protect the vulnerable by holding third parties responsible.  Individuals and institutions pursuing their own self interest at the expense of senior residents and patients is a common theme in cases like the one reported.  

Of course, the case does not ask or resolve the question of whether a health care system devised and regulated by a government bureaucracy overly concerned with reducing costs at the expense of quality can ever attain a high quality of care for patients.  Aging in Place is a discreet goal of a well-crafted estate plan because a person with family and loved ones can often better control the circumstances of their care at home or at less institutional alternatives.

Unpacking Trustees- Primary, Successor, and Special Trustees, Trust Protectors and More

A typical Trust document will refer to a Trustee (sometimes referred to as an Original or Primary Trustee) and a Successor Trustee.  These terms are straight-forward and easily understood by even those who are new to a trust or new to trust planning.  The Trustee is the person with general management responsibility for the trust and for the assets, and a Successor Trustee is the person who is designated to take over according to the terms of the trust, typically when the Original or Primary Trustee is unable or unwilling to serve.  By the way, a "person" as used in most trust documents can be a human person, or an institution such as a bank, trust company, broker-dealer, or the like.  Most trusts have provisions regarding institutional trustees, even if none is currently serving or appointed to serve, because future use of an institutional trustee may be necessary or advisable.  

Succession of Trustees  

The trust terms dictate the succession of trustees, and this succession may go beyond simple ability or willingness to serve.  It is not uncommon, for example, that a trust document appoint a successor trustee upon the happening of an event or condition precedent, such as when a person comes of age, or when a person is separated from a family by termination of marriage.  The Trustee serving may be willing and able to serve, but may be replaced by a Successor Trustee when the Successor Trustee attains a certain age, or if the Trustee's marriage is terminated.

Co-Trustees

Many trusts refer to Co-Trustees.  A Co-Trustee is simply two or more persons serving as together as trustee at the same time.  Co-trustees may be empowered to act independently or may be required to act concurrently or in concert.  Simply, a Co-Trustee that is empowered to act independently may act alone, and only one Trustee's signature may be required to take action, while Co-Trustees that act concurrently or in concert must agree, and the signatures of both Co-Trustees will normally be required to act.      

Additional Trustees

Many trust documents refer to additional, separate Trustees.  Reference to these additional trustees may cause confusion for laypersons, as they are typically defined in the trust document only by context.  In other words, the trust document identifies who may serve as a separate or additional trustee, and may describe the authority of these Trustees, but rarely do these documents explain the purpose or objective they serve in the overall plan. This confusion sometimes causes dispute when a separate or additional trustee misinterprets their role and begins making demands of the trustee or attempts to exercise general power or authority over a trust or its assets.  

Special Trustees    

A Special Trustee is someone who is entrusted with exclusive or non-exclusive authority over a particular Trust asset or area of decision-making. The most common reason for a Special Trustee is to protect an asset or asset class, usually because that asset or asset class requires special expertise.  There are two common situations where Special Trustees are employed by a trust.  The first is where a family member serving as a Trustee is dealing with a family member, or himself, or herself in administering the trust assets; when a trustee is selling the family home to a sibling beneficiary.  Although lawful, the conflict of interest may best be resolved, or may require appointment of a Special Trustee to prosecute the sale.  

Another common situation is where the assets include a specialized or professional business, for example a medical, legal or financial practice. A professional medical corporation may be owned by a trust, but the law may restrict the ownership of the corporation to a licensed physician.  Thus a surviving non-licensed spouse may serve as Trustee of the Trust, but another person who has the required license may be needed to serve as Special Trustee who winds-up the affairs of the practice, sells the practice assets and transfers the net cash proceeds into the name of the Trustee. 

Even non-professional businesses may involve a Special Trustee.  Farmers, for example, may desire that one child oversee the administration of all of the assets, but may desire that a person with farming experience and expertise oversee administration of the farm and farm assets.  Our office has worked with clients that wanted Special Trustees to oversee the administration of business assets, to oversee the treatment and disposition of exotic animals such as exotic birds, ostriches, and cutting horses, and to oversee administration of unique assets such as artwork, copy-righted publications, antiques, and in case, a train.  

Trust Protectors    

 A Trust Protector is someone who is entrusted with exclusive or non-exclusive authority to protect a particular beneficiary or class of beneficiaries, usually because of vulnerability and/or inability of the beneficiary or beneficiaries to protect themselves.  Beneficiaries that are minors, or suffer from disability or impairment may require special protection since they are unable to protect themselves. A  Trust Protector is not, usually, involved in the day to day management of the Trust or its assets, but is typically empowered to oversee the Trustee.  A Trust Protector may be empowered to terminate a Trustee, replace a Trustee, or nominate and appoint additional Successor Trustees.  A Trust may confer to Trust Protectors additional authority to ensure that the Trust continues to work in the best interest of the beneficiaries, by, for example, authorizing a Trust Protector to petition the court to amend or reform the Trust document.  

Trust protectors are commonly used in Supplemental Needs Trusts and in wholly discretionary Trusts where the Trustee has complete discretion whether or not to distribute assets to the beneficiary. A Trust Protector is an alternative to requiring an advocate on behalf of a vulnerable beneficiary to seek and obtain legal authority to represent the beneficiary, and then protect the beneficiary formally, legally through court processes.  Like probate administration of assets, these legal processes bear cost and expense, including the uncertainty of outcome, time, and legal expense.   

Planning Regarding Trustees 

A common question is, "who do I appoint as successor trustee of my trust?"  Keep in mind two things.  First, that person will settle your estate.  Second, and more importantly, that person will mange your assets and affairs for you,  during your life, if you are unable to do so!    

Simply, a person serving as trustee should have the trust and confidence of the person creating the trust and making the appointment.  That trust and confidence is best if based upon actual repeated interaction and experience with the trustee over a long period of time.  If based upon a brochure, flyer, referral of a family member, recommendation of counsel, that trust and confidence may, of course, turn out to be well-founded, but, at least initially, you have no personal basis for trust and confidence.

A person should not be appointed as a trustee simple because they have a relationship with the the person who creates the trust, or with the beneficiaries of the trust.  While relationship is an important consideration, trust and confidence do not always follow familial relationship. 

Also, plan for the worst case scenario, and not the statistically probable or best case scenario.  Often, a person will ignore excellent choices do to their age or due to health considerations that may impact the life expectancy of potential trustees. Select the best person for the job now.  Select successors to handle the passage of time and circumstance.  

While it is perhaps correct that a parent or older sibling, or younger sibling may not be able to serve if you reach an advanced age, if they are a better choice for the near term than younger less responsible choices, do not overlook them.  The worst case may be statistically improbable, but planning should be based on that which is foreseeable and possible, however unlikely.  Worst case scenarios, when they do play out, are often made worse by poor planning. 

Looking Ahead to 2026- Estate Tax Exemption Sunset and Current Planning Opportunities

The estate and gift tax exemption amounts will decrease at the end of 2025. Decreasing the exemption amounts is tantamount to an increase in the tax because more people are impacted by the existing tax. Currently, an individual can make transfers by gift during life, and bequests at death, up to an aggregate of $12.92 million, with that amount increasing to $13.44 million in 2024, without incurring gift or federal estate tax. Similarly, the federal Generation Skipping Tax (GST) exemption is currently $12.92 million, increasing to $13.44 million in 2024. 

On January 1, 2026, these amounts are scheduled to “sunset” and revert back to the 2017 amount of $5 million, adjusted for inflation. Although the time frame for sunsetting may be extended depending on political and economic factors, it would be prudent for people with larger estates to take advantage of the opportunities available now by utilizing the exemption amounts in excess of the projected 2026 exemption amounts, in case the exemptions are reduced as scheduled in 2026 (or possibly changed before then).

In light of the looming reduction of estate and gift tax exemption amounts, consider some of the following opportunities:

• Complete gifts now to use available exemptions, particularly GST tax exemption for gifts into a long-term dynasty trust. In light of the pending decrease of the estate, gift and GST tax exemption amounts and taking into consideration the proposed effective dates, it may make sense for those individuals who have exemptions available to make gifts prior to year-end 2023, and before the uncertainties inherent in election year 2024.
• In connection with making gifts in 2023, giving a fractional interest in the property (such as an interest in an LLC or real estate) may prove beneficial as the value for gift tax purposes may be reduced by certain discounts, such as a discount for lack of control and/or lack of marketability.
• Consider a spousal lifetime access trust (SLAT) to take advantage of the current high gift and GST exemptions, while retaining some access to the trust assets at the spousal level.
• Consider giving to an irrevocable “grantor trust” that includes a power to reimburse the grantor for income taxes paid. A “grantor trust” means the grantor, not the trust, is treated as the owner for income tax purposes. The grantor pays all income taxes attributable to the trust income, which allows the trust assets to grow without reduction for income taxes. Grantor trusts can be drafted to permit a trustee to reimburse the grantor for income taxes paid; however, until recently it was an open question whether such a power in a California grantor trust would cause negative estate tax consequences to the grantor. This is because prior announcements from the IRS stated that a power to reimburse a grantor for income taxes paid does not cause inclusion of the trust in the grantor’s estate if certain requirements are met, including that applicable state law must not subject the trust assets to the claims of a settlor’s creditors. Effective January 1, 2023, the California Probate Code clarifies that a trustee’s power to reimburse the grantor for income taxes paid does not create a beneficial interest that would allow the settlor’s creditors to reach trust assets.
• For those who are charitably inclined, consider charitable planning such as charitable remainder unitrusts (CRUTs) and charitable lead annuity trusts (CLATs).
• For individuals and families who do not have a significant amount of estate and gift tax exemption available but wish to reduce their overall estate, consider a sale to a trust in exchange for a promissory note. If structured properly, since the transaction is a sale, it will not be treated as a taxable gift, and the assets sold to the trust will be excluded from the estate of the grantor/contributor. The note becomes the replacement asset of grantor/contributor, effectively transferring the appreciation on the asset to the trust.
• If you own Qualified Small Business Stock (QSBS), consider gifts to one or more irrevocable trusts to take advantage of substantial exclusions from federal income tax on capital gains. Gifts of QSBS continue to be eligible for the exclusion on gain, and the transferor’s five-year holding period “tacks” to the transferee. The gifted shares to irrevocable trusts that are appropriately structured will be eligible for a separate exclusion (up to the limitation amount) in addition to the exclusion that continues to be available for eligible shares retained by the transferor.
• For individuals who have used their lifetime gift exemption but still have unused GST exemption, consider a late allocation of your remaining GST exemption amount to an existing GST non-exempt trust you have previously created. Alternatively, consider setting up a new two-year grantor retained annuity trust (GRAT) before the end of 2023 so you can apply your unused GST exemption to the GRAT remainder interest prior to January 1, 2026.

The foregoing is solely for illustration purposes. You should reach out to your legal advisor before undertaking any tax or estate planning to determine if it is appropriate for your situation.

New Tax Credit Planning Opportunities for Individuals and Families

Beyond the general planning opportunities previously discussed, individuals and families should be aware of certain new tax planning opportunities. In June, the Department of the Treasury and IRS released guidance on Internal Revenue Code (IRC) Section 6418, which provides taxpayers a new way to monetize certain energy tax credits. The guidance included proposed regulations relating to the transferability of tax credits under IRC Section 6418. Specifically, Section 6418 allows for the sale of tax credits solely for cash to unrelated taxpayers, and such payment does not constitute taxable income to the transferor (and is not deductible by the transferee). Prior to the enactment of Section 6418, investors typically accessed renewable energy tax credits by investing in so-called “tax equity” partnerships—which were only workable for more sophisticated investors due to the costs and qualifications under such partnership arrangements. Now, with the new rules, monetization of renewable energy tax credits has been made more accessible to a broader range of investors, including partners of a partnership and individuals. Unfortunately, limitations exist. For one, the “passive activity” limitations, applying to individuals, trusts and estates (but not corporations), make such transferees subject to IRC Section 469, only allowing them to utilize purchased tax credits against tax liabilities associated with passive income generated from other sources.  Additional information can be found here.

IRS Targets on Wealthy Taxpayers

In September, the IRS announced it is focusing on high-income earners to “identify sophisticated schemes to avoid taxes.” Bolstered by its funding from the Inflation Reduction Act (IRA) of 2022 (P.L. 117-169) and equipped with artificial intelligence and machine-learning technologies, the IRS employed three key initiatives. The first “High Wealth, High Balance Due Taxpayer Field Initiative,” committed dozens of revenue officers to focus on taxpayers with total positive income above $1 million and more than $250,000 in recognized tax debt. The second bolstered IRS compliance efforts related to ongoing discrepancies on the balance sheets of partnerships with over $10 million in assets. The third program focuses on monitoring returns for partnerships with greater than $10 billion in assets.

Summary

The IRS is committed to increasing collection of tax revenue, and federal and state governments are more likely to to increase rather than decrease taxes. Advanced planning to avoid taxation makes sense.  It is best to plan now than discover that you have lost planning opportunities, and incurred unnecessary and avoidable tax liability.  

CMS Proposal Embraces Aging in Place; Medicare Would Train Home Caregivers

A new proposal from the Centers for Medicare & Medicaid Services (CMS) offers to support family, friends, and neighbors who care for frail, ill, and disabled seniors. For the first time, Medicare would pay health care professionals to train informal caregivers who manage medications, assist loved ones with activities such as toileting and dressing, and oversee the use of medical equipment.

The proposal, which would ostensibly cover both individual and group training, is recognition of the role family caregivers, also called informal caregivers, play in protecting the health and well-being of older adults. About 42 million Americans provided unpaid care to people 50 and older in 2020, according to a much-cited report.  The proposal is also support for aging in place; by removing real barriers to family caregiving and encouraging family members and friends to take on care-giving roles, the proposal makes aging in place an even more attractive alternative to institutional care.  

“We know from our research that nearly 6 in 10 family caregivers assist with medical and nursing tasks such as injections, tube feedings, and changing catheters,” Jason Resendez, president and CEO of the National Alliance for Caregiving told KFF News. "But fewer than 30% of caregivers have conversations with health professionals about how to help loved ones," he said.  Even fewer caregivers for older adults — only 7% — report receiving training related to tasks they perform, according to a June 2019 report in JAMA Internal Medicine.

Nancy LeaMond, chief advocacy and engagement officer for AARP, after recounting her personal caregiving experience requiring that she and a caregiving son access library videos regarding caregiving, told KFF News , "[u]ntil very recently, there’s been very little attention to the role of family caregivers and the need to support caregivers so they can be an effective part of the health delivery system.” 

Several details of CMS’ proposal have yet to be finalized. Notably, CMS has asked for public comments on who should be considered a family caregiver for the purposes of training and how often training should be delivered.

Many advocates favor a broad definition of who qualifies as a caregiver. Since several people often perform caregiving tasks, training should be available to more than one person. Moreover, since seniors sometimes reimburse family members and friends for assistance, being unpaid should not be a requirement.  Advisors often counsel seniors needing care to make such payments in order to reduce the countable estate for Medicaid eligibility purposes, and to incentive engagement and advocacy for the senior's best interest. 

Other advocates raised their concerns with KFF News:

As for the frequency of training, a one-size-fits-all approach isn’t appropriate given the varied needs of older adults and the varied skills of people who assist them, suggested Sharmila Sandhu, vice president of regulatory affairs at the American Occupational Therapy Association. Some caregivers may need a single session when a loved one is discharged from a hospital or a rehabilitation facility. Others may need ongoing training as conditions such as heart failure or dementia progress and new complications occur, Kim Karr, who manages payment policy for AOTA, told KFF News.

When possible, training should be delivered in a person’s home rather than at a health care institution, suggested Donna Benton, director of the University of Southern California’s Family Caregiver Support Center and the Los Angeles Caregiver Resource Center. All too often, recommendations that caregivers get from health professionals aren’t easy to implement at home and need to be adjusted.

Judith Graham, writing for KFF News reported that some are, nonetheless, skeptical.

For her part, Cheryl Brown, 79, of San Bernardino, California — a caregiver for her husband, Hardy Brown Sr., 80, since he was diagnosed with ALS in 2002 — is skeptical about paying professionals for training. At the time of his diagnosis, doctors gave Hardy five years, at most, to live. But he didn’t accept that prognosis and ended up defying expectations.

Today, Hardy’s mind is fully intact, and he can move his hands and his arms but not the rest of his body. Looking after him is a full-time job for Cheryl, who is also chair of the executive committee of California’s Commission on Aging and a former member of the California State Assembly. She said hiring paid help isn’t an option, given the expense.

And that’s what irritates Cheryl about Medicare’s training proposal. “What I need is someone who can come into my home and help me,” she told me. “I don’t see how someone like me, who’s been doing this a very long time, would benefit from this [training]. We caregivers do all the work, and the professionals get the money? That makes no sense to me.

Of course, concern regarding systemic over-reliance upon institutional care is valid; systems do not reform easily.  There are other reasons for concern, too.  For example, indoctrinated "trainers" may oppose aging in place for some, and may resist non-traditional treatments and therapies in conjunction with or as alternatives to the traditional.  The new cadre of voices and eyes will, no doubt, sometimes over-reach and interfere with individual autonomy and reliance upon family and friends.  The flip side, of course, is that these eyes and ears can report legitimately unsafe, abusive, or exploitative situations providing vulnerable seniors additional protection.       

Regardless, the proposal is a welcome step in the direction of aging of place as a legitimate alternative to institutional care.  No doubt there is more work to be done, including financially supporting home caregivers who could, in many cases cost a fraction of the cost of institutional care, and secure better health outcomes.

If you’d like to let CMS know what you think about its caregiving training proposal, you can comment on the CMS site until 5 p.m. ET on Sept. 11. The expectation is that Medicare will start paying for caregiver training next year, and caregivers should start asking for it then.

Article Largely Based On: Judith Graham, "A New Medicare Proposal Would Cover Training for Family Caregivers," KFF Health News (August 18, 2023, last accessed 8/27/2023).

SSI Application Process Streamlined by SSA

The Social Security Administration (SSA) issued a notice in August 2023 announcing its plan to embark "on a multi-year effort to simplify the Supplemental Security Income (SSI) application process."  

Approximately 8 million people currently receive SSI benefits. SSI benefits are needs based and are reserved for low-income individuals with limited assets. SSI contrasts with Social Security Disability Insurance (SSDI) benefits, which are not needs-based, and are reserved for those who have worked/paid corresponding taxes for the appropriate work quarters, and do not have any associated income or asset limitations

Given that qualifying for SSI is based on financial need, individuals must meet a complex set of criteria and supply a great deal of detailed information to the SSA. The application is time-consuming and cumbersome.  Applicants are often required to provide information that is ultimately unnecessary, and may find that other information.  For seniors and younger people living with disabilities, the difficulties presented when applying for SSI can become a major barrier to access.

First Phase: iSSI

Going forward, the SSA intends to create a fully accessible online SSI application for all. By late 2023, the hope is to put into place the first phase of this initiative, the SSI Simplification Phase I Initiative (iSSI). This initial phase seeks to simplify the SSI application process for low-income applicants who are over age 65 and/or have long-term or permanent disabilities.

By integrating several online portals, the SSA will be able to pre-populate some of the applicant’s information, streamlining the number of basic questions the applicant needs to answer. The system will allow individuals to apply for themselves, or on behalf of a loved one, all without having to visit a local SSA office.

According to the SSA, a greater number of people (including non-U.S. citizens) will be able to apply as a result, and in a timelier manner. In addition, individuals who are starting the SSI application process will no longer need to gather as extensive an amount of paperwork ahead of time, fill out any paper forms, or visit field offices in person.

For further details regarding how iSSI is designed to work, visit the Office of the Federal Register website.

U.S. Supreme Court Rules Tax Foreclosure Sale Surplus Retention Unconstitutional

The elderly are often vulnerable to punitive home foreclosures.  The United States Supreme Court has handed down a decision ruling in favor of an elderly homeowner who lost her real property to a tax foreclosure action. The homeowner, 94-year-old Geraldine Tyler, failed to pay property taxes on her condominium for several years. Hennepin County, Minnesota seized the property through tax foreclosure. The county then sold it for $40,000, reimbursed itself for the approximate $15,000 she owed, and kept the $25,000 excess. A unanimous SCOTUS court ruled that the County violated the Takings Clause of the Fifth Amendment of the United States Constitution. It declined to rule on whether it also violated the Excessive Fines Clause of the Eighth Amendment. See Geraldine Tyler v. Hennepin County, Minnesota, et al., (U.S., No. 22–166, May 25, 2023).

The Court ruled that Hennepin County had the power to sell Ms. Tyler’s home to recover unpaid property taxes, but, it could not take more than it was due. The county’s action constituted a taking in which a government directly appropriates private property for its own use. The idea that government may not take from a taxpayer more than what is due is rooted in U.S. and other legal precedents going back hundreds of years. This is also consistent with the laws of 36 U.S. states and the federal government, which require that excess value be returned to the taxpayer. Hennepin County’s position, fortunately, constitutes the minority position.

Furthermore, this action by Hennepin County harmed Ms. Tyler. Although the tax lien sale extinguished other liens, she remained personally liable for remaining unpaid mortgage debt and HOA fees. If Ms. Tyler had received the $25,000 surplus, she would have been able to satisfy other debts.

The Court considered but rejected the county’s argument that Ms. Tyler abandoned her property by failing to pay her property taxes.  The Court found that Ms. Tyler did not surrender or relinquish all rights to the property. She could have continued to use the property for several years after falling behind on the taxes until the foreclosure process was complete. A failure to contribute to her share of taxes to the government is not equivalent to abandonment sufficient to avoid complying with the Takings Clause. The court reversed the judgment of the Eight Circuit Court of Appeals is reversed.

Two SCOTUS judges also published a concurring opinion addressing Ms. Tyler’s argument that the county’s actions violated the Excessive Fines Clause of the Eighth Amendment. They cautioned that lower courts should not ignore the issue. Actions such as those of Hennepin County may be subject to claims that they violated the Eighth Amendment, where a statutory scheme partially punishes a taxpayer, regardless of whether it is somewhat or primarily remedial. Minnesota’s tax-forfeiture scheme was not solely remedial and had punitive elements. As such, the concurring Justices contend that the Eighth Circuit committed a further error when it dismissed Ms. Tyler’s Eighth Amendment claim, and warned that future courts should not follow suit.