Aging in Place- Postacute Care Payment Reform for Informal Caregivers

Health Affairs has published an excellent article describing the financial challenges imposed by the existing Medicare system for those planning to Age in Place, and making excellent suggestions for legislative changes to support Aging in Place.  Penned by Paula Chatterjee,  Allison K. Hoffman, and   Rachel M. Werner, the article describes in a few short paragraphs the financial challenges:

"In 2015, Medicare spent nearly $60 billion on institutional postacute care, an amount that has rapidly increased in recent years. In fact, nearly three-quarters of the geographic variation in total Medicare spending is driven by the variation in postacute care spending alone. Taken together, these patterns call into question the value of postacute care and especially its return on investment for patients.

Given its growing contribution to US health care costs, postacute care has become a common target for efforts to reduce costs under alternative payment models, such as bundled payments and accountable care organizations (ACOs). These models are increasingly holding hospitals responsible for the costs of care provided during the post-hospitalization period. Recent evaluations have found that cost savings achieved under alternative payment models are driven almost entirely by a decrease in the use of inpatient postacute care. This trend is largely the result of a compensatory increase in the number of patients who are being discharged directly home, and thus bypassing the postacute care setting altogether. 

The push to discharge more patients directly home after hospitalization may seem preferable in some circumstances. In addition to being financially sensible by decreasing spending on postacute care, patients might prefer to be discharged home rather than to an institutional setting. In this way, getting patients home may represent a rare opportunity to align goals across patients, payers, and health systems. However, these gains must be viewed in the context of the costs borne by those who care for patients once they are discharged home—informal caregivers. 

Informal Caregivers In The US 

An estimated 34.2 million US adults report serving as an informal caregiver, providing unpaid care to an adult age 50 or older in the prior year. The economic valuation of informal caregiving for older adults, based on hours spent caregiving, is estimated to be nearly $522 billion annually. However, this value likely underestimates the true cost of caregiving in that it does not account for the physical, emotional, economic, and health-associated burdens associated with these roles. Informal caregivers are more likely to take leave from a job, take out a loan or mortgage, spend savings; hold multiple jobs, or retire early; suffer harm to intimate relationships, family conflict, worsened health, decreased geographic mobility, and an inability to pursue life goals. These effects are more common among women; tend to be more severe among those with low educational attainment, depression, and social isolation; and can contribute to a cycle of household poverty. As a result, the potential spillover effects of payment policies designed to get patients home may cause particular harm to already vulnerable populations.

Do Existing Payment Policies Offer Support For Informal Caregivers? 

Payment policies designed to reduce institutional postacute care do little to support home-based care when patients are more quickly discharged than before. Medicare’s home health benefit provides limited home-based support, with at most one visit per day from a home health provider. Although Medicare Advantage expanded this benefit in 2019 to cover non-skilled needs such as help with daily activities, in the postacute period, when patients frequently need significant support in their activities of daily living, a once-daily visit is unlikely to alleviate caregiver burden. Other alternative payment models that encourage home-based care also do little to support home-based care. There have been a number of recent reforms that focus on improving support for caregivers. Various policies, such as the Caregiver Advise, Record, Enable (CARE) Act, have attempted to provide better supports for caregivers, but they fall short in addressing the true burden and insecurity caregivers face. 

How Could Payment Policies Be Changed?

Changes in payment policies could begin to address this burden. Strategies that directly fund informal caregivers who provide postacute care could begin to fill this gap. This approach is not untested. State Medicaid agencies pay for home-based custodial care for older adults who might otherwise need nursing home–based care, and in some states, family members can be the paid caregivers. Medicare policies could similarly support home-based informal caregivers in the postacute period. Bundled payments could redirect funds that were previously dedicated to institutional postacute care settings to compensate caregiving in home-based settings, including flexible funding to pay for caregiving, transportation, respite care, or compensation for a family caregiver.  

Alternative payment models could similarly incorporate innovative approaches to support informal caregivers. The Next Generation ACO model currently waives the direct supervision requirement for post-discharge home visits, in effect allowing payment for home visits by a licensed clinical staff member without a physician’s direct involvement. This waiver provides some flexibility to tailor home visits to meet patients’ needs and could be extended to include payments to informal caregivers who provide the bulk of daily care. Given their central tenet of care coordination, a logical next step could be for ACOs to incorporate informal caregivers into the care management team responsible for monitoring and treating patients and developing strategies for broader population health management. 

An alternative solution is to indirectly provide funding to informal caregivers through paid leave from work to care for family members requiring help in the postacute period. Several states have pursued a policy of paid family leave, including California, New Jersey, New York, Rhode Island, and Washington. A national policy of paid family leave could help offset the financial burden associated with needing to take leave from work to provide caregiving, especially when caregiving is temporary as it most often is in the postacute period. 

Finally, alternative payment models should balance incentives to control costs of care with incentives to measure and maintain good outcomes, both for patients and for family members during the postacute period. These outcomes might include perceived support and satisfaction with the care plan in the postacute period. Including such outcomes in financial incentives could motivate providers to invest in supporting caregivers and other in-home supports that benefit patients in the postacute period. 

Supporting The Unsung Heroes 

The push to discharge more patients directly home presents an opportunity to align the goals of clinicians, patients, and their friends and families during the postacute period. If support for caregiving is not addressed, however, payment reform will likely result in the unintended consequence of increasing caregiver burden. While hospitals and health systems work to reap the savings associated with alternative payment models, we must ensure that families do not ultimately bear the costs. Future policies must mitigate the burdens, inequities, and economic insecurities that result for families and friends who provide post-discharge care—these are the societal costs of caring for patients at home (emphasis added)."

This excellent article not only describes succinctly the financial disincentives imposed upon family caregiving, the resulting negative outcomes for family caregivers, and the reform necessary to facilitate aging in place planning.  Coupled with the obvious negative health outcomes institutional care presents for seniors, the case for reform is overwhelming. 

New Ohio Law Gives Probate Courts New Tools to Protect Wards Under Guardianship

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A new law in Ohio is designed, in part, to protect people under court-appointed guardians.  

House Bill 595, signed into law Dec. 21 by outgoing Gov. John Kasich, among other things, allows county probate courts to establish adult guardianship services boards and funds to provide for the oversight of services and care for those under guardianship.  Several probate courts have implemented similar voluntary programs, but the new law enables every probate court to implement what many contend is much-needed oversight over court-appointed guardians. 

When an adult becomes incapable of managing personal decisions or property, a probate court may appoint a guardian to make decisions on behalf of that adult. These decisions can be related to property, medical care, living arrangements, and financial issues. Guardianship cases for adults can be expensive, time consuming and complex. Guardianship, however, can be an indispensable tool in protecting an adult, and the adult's estate.  Guardians can even help prevent elder abuse and financial exploitation.

Guardianship, unfortunately, can itself be abusive, and a guardian with extensive authority, can be a threat to the adult's estate.  This blog contains numerous articles (several listed below) detailing the risk of guardianship abuse, ranging from guardianship appointments that are not well-founded or justified, to financial and physical abuse of adults by their court-appointed guardians.      

The lack of quality court monitoring in guardianship is one factor that can lead to  abusive situations, and sometimes a court will lose track of a ward and the ward's condition, the ward's money, or even the guardian. State courts are responsible for monitoring guardians' performance and ensuring that individuals under guardianship are protected and treated appropriately.  AARP has found that follow-up with reporting requirements and accounting required by guardians is lacking in many states across the country, in part, due to the sheer overload of cases in the system.  

“Cutting red tape for county courts to work together to provide services to individuals under guardianship could save time, money for the individual, their families/caregivers, and the state,” AARP State Director Barbara A. Sykes said in a statement. “Additionally, when state courts work together on such cases, they could not only be more efficient and effective, but they could also potentially detect signs of abuse and exploitation earlier in the legal process.”

Of course, effective planning, especially "Aging-in-Place" planning, does not rely upon the legal or financial system for success.  Reform should always be applauded, because, so often, real change takes time.  Whether and when these changes will reduce the incidence or effect of abusive guardianship remains to be seen.  Regardless, the wise plan for the worst, and with an effective estate, financial, and health care plan in place, hope for the best.       

The new law, is known as the Probate Omnibus Bill, and thus is not limited to just guardianship reform; the law amends several state statutes including those concerning probate, trusts and estates, and elderlaw.  Future articles will discuss other areas impacted by the new law.  

Previous articles include the following:

• Guardianship Reform Helps, but Planning Shouldn't Wait;
• Astronaut Buzz Aldrin Subject of Guardianship Dispute;
• Health Care Ageism And Senior Profiling;
• Contesting Guardianship or Challenging Guardians Is Problematic;
• Estate Plans Should Consider and Attempt to Resolve Guardianship;
• Illinois Permits Guardian Authority to Petition for Termination of a Ward's Marriage;
• GAO reports on Guardianship Abuse;
• National Groups Acknowledge Need for Guardianship Reform;
• Report on Abuse by Guardians and the Guardianship Process Released;
• Another Reason for Guardianship Planning: Guardian Convicted of Homicide in Death of Ward

Guardianship Reform Helps, but Planning Shouldn't Wait

Pennsylvania has implemented a Guardianship Tracking System (GTS), a new web-based system for guardians, court staff, Orphans’ Court clerks and judges to file, manage, track and submit reports. The system integrates statewide guardian information, thereby helping to protect Pennsylvania’s most vulnerable citizens while streamlining and improving the guardianship filing process.  Every little bit helps. One of the unstated benefits of making guardianship reporting easier, is that ease encourages filial and social caregivers to act as guardians. 

Of course, a better plan is to adopt an estate plan incorporating "Aging in Place" strategies, appointing and empowering trusted caregivers (not corporate trustees -banks, financial advisers, or attorneys) and preventing court-appointed guardian control of assets. In addition to making it even easier for filial and social caregivers to act on your behalf, such planning makes court-appointed guardianship more difficult and less lucrative for those who might be interested primarily in financial gain. The National Association to Stop Guardianship Abuse (NASGA) says it best; abusive guardianships have a distinctive pattern: Isolate- Medicate- Liquidate- Drain the Estate.

Guardianship reform helps, and should be encouraged and applauded. Planning, however, shouldn't wait. 

Click here to read the original Facebook post.

Click here to proceed directly to the National Association to Stop Guardianship Abuse Blog article.  

Trust Can be Reformed to Change Beneficiaries

Can a trust be reformed to add beneficiaries where the trust as originally drafted fails to include beneficiaries?  According to a recent Florida trust case, a  trust can be reformed to add a residual beneficiary clause. 

In Megiel-Rollo v. Megiel, 2015 Fla. App. LEXIS 5601 (Fla. Dist. Ct. App. 2d Dist. Apr. 17, 2015), the decedent had prepared a will naming her three children as equal beneficiaries.  Some years later, the decedent prepared a revocable trust.  She also deeded her real property to the trust.  The trust, however, failed to name any beneficiaries of the trust upon the death of the decedent.  The trust, instead, stated that, upon the death of the settlor, the corpus should pass according to a "Schedule of Beneficial Interests," which was supposed to be prepared and attached to the trust.  At the time of death, no Schedule of Beneficial Interests was located.  

Of course, it not uncommon for documents (wills, trusts, beneficiary designations, and the like) and attachments to come up missing after death.  The case presents an object lesson why one should not rely upon attachments or schedules to nominate fiduciaries or beneficiaries, and should instead incorporate both in the body of the instrument, and further, why it is important to ensure the integrity of the instrument through time.  For more information regarding this aspect of planning, go here (the link will take you to series of articles regaring planning protection or vaulting).  

In this case, a dispute arose among the three children of the decedent, with two claiming that the decedent intended to name the two of them as the sole heirs, with the third child contending that the trust was void and/or could not be reformed.  Under the third child's contention, the trust would be split into three equal shares for the children. In support of the claim of the two, the drafting attorney filed an affidavit admitting that he had made a mistake and should have prepared the Schedule of Beneficial Interest naming only two the decedent's children as the beneficiaries of the trust.  Based on this affidavit and other information, the two children argued for trust reformation.

The Florida Trust Code, as of 2007, contains a trust reformation provision that allows a trust to be reformed to correct a mistake, Section 736.0415:

Upon application of a settlor or any interested person, the court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor's intent if it is proved by clear and convincing evidence that both the accomplishment of the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement. In determining the settlor's original intent, the court may consider evidence relevant to the settlor's intent even though the evidence contradicts an apparent plain meaning of the trust instrument.

The third child argued that the trust itself failed under the "merger" doctrine, which requires that a trust have some separation of interests in the corpus.  The Court rejected this argument (internal citation omitted: 

[t]he failure of the Trust instrument to designate any remainder beneficiaries would ordinarily result in a merger is correct as far as it goes. "In order to sustain a trust entity, there must be a separation between the legal and equitable interests of the trust. If there is no separation of these interests, the doctrine of merger may apply and the trust be terminated." "If the designation of beneficiaries is deemed too indefinite for enforcement of the provisions of a trust, the usual result is that the trust is void and 'the designated trustee holds the corpus under a resulting trust in favor of the estate of the settlor.'" Based on these general principles, we agree with Sharon that--absent reformation--the failure of the Trust to designate any remainder beneficiaries would have the result that upon the Decedent's death, then Denise, as successor trustee, would hold the Trust assets upon a resulting trust for the benefit of the Decedent's estate.

The Court. then permitted the requested reformation of the trust: 

It is beyond argument that the statutory reference to "a mistake of fact or law" is not limited by any qualifiers. The broad scope of the language used in the statute is inconsistent with the notion that reformation is available to correct some mistakes in a trust, i.e., "simple scrivener's error," but not others. "[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, . . . the statute must be given its plain and obvious meaning.

Giving the statutory language of section 736.0415 its plain and ordinary meaning compels the conclusion that the remedy of reformation of the Trust is available to correct the alleged drafting error resulting from the omission to prepare and incorporate into the Trust the contemplated Schedule of Beneficial Interests. The absence of any language of limitation in the statute--other than the requirement of proof by the heightened standard of clear and convincing evidence--is additional evidence that  the legislature did not intend the construction of the statute for which Sharon contends. For this court to read such a limitation into the statute would amount to judicial legislation of the sort in which we will not indulge.

The case should comfort those that worry that their wishes may not be accurately or completely expressed in their estate planning documents.  On the other hand, others may be worried that their expressed wishes may be changed by family, friends, or advisers after their death.  Of course, proper planning, and  continued efforts to support the plan will reduce or eliminate such risks.