Is Medicare Advantage Plan Popularity "Coerced?" The Conversation.

The growth of Medicare Advantage (MA) plans over the past 15 years- reaching 54% of Medicare beneficiaries by 2024, or roughly 33 million enrollees, is generally attributed to a combination of policy changes, market dynamics, and genuine appeal to beneficiaries. I, for one, have evolved in my thinking regarding these alternatives to traditional Medicare, initially preferring traditional Medicare, but now actively encouraging clients to explore the MA option, particularly to facilitate aging in place planning. For example, see the following articles:

• Aging in Place: New CMS Policies are Changing the Way Investors View Home Health
• 2019 Medicare Advantage Plans Incorporate Long Term Care, Aging in Place Benefits

A recent article, however, suggests that MA plans are popular because they are compelled or coerced, and the rising number of subscribers doesn't reflect a real "preference." "Medicare Advantage is covering more and more Americans − some because they don’t get to choose," published on The Conversation on April 3, 2025, by Grace McCormack and Victoria Shier, presents a critical perspective on the rapid expansion of Medicare Advantage (MA) plans in the United States. While it raises valid concerns about privatization trends, cost to taxpayers, and limited choice for some beneficiaries, the piece has several shortcomings in its analysis, including a lack of consideration and analysis of counterarguments, an overemphasis on negative framing, and insufficient exploration of the broader context driving MA’s growth. What follows are my thoughts.

The article’s central thesis is that MA’s growth is driven by a lack of choice, particularly for retirees whose employers or state governments limit subsidies to MA plans, effectively "forcing" them into privatization. While this is a legitimate point, supported by the claim that 13 states and over half of large private employers offering MA do not subsidize traditional Medicare supplements, I think it oversimplifies the decision-making process for beneficiaries. The authors imply a coercive dynamic, but fail to adequately explore why employers and states have shifted toward MA in the first place.

For instance, they do not discuss the financial incentives for employers, such as lower administrative costs or the ability to offload retiree healthcare liabilities onto private insurers, which MA plans often market as a benefit. Nor do they consider that some beneficiaries might prefer MA’s bundled coverage (e.g., vision, dental, and hearing benefits) over traditional Medicare, even if choice is constrained.

Moreover, the article does not quantify how many individuals are truly "forced" into MA versus those who opt in voluntarily after weighing options. The statistic that 54% of Medicare beneficiaries are enrolled in MA (up from 8 million to 33 million between 2007 and 2024) is striking, but it conflates voluntary and involuntary enrollment without breaking down the proportions. This lack of granularity weakens the claim that lack of choice is a primary driver, as it could equally reflect MA’s appeal to a broad population.

The article highlights that switching from MA back to traditional Medicare is "often difficult," citing the loss of guaranteed-issue rights for Medigap plans after the initial enrollment period. This is technically accurate- outside of four states (Connecticut, Maine, Massachusetts, and New York), Medigap insurers can deny coverage or charge higher premiums based on preexisting conditions if beneficiaries leave MA after their first year. The authors do not explore the extent to which this locks people in practice, however, ignoring the initial opportunity to abandon the MA plan, and/or the opportunity a younger retiring spouse has to consider the first retiring spouse's choice and experience. For example, they do not provide data on how many MA enrollees attempt to switch and are denied Medigap, nor do they discuss the role of Special Enrollment Periods or protections for those whose MA plans are discontinued (e.g., the 63-day guaranteed-issue window mentioned in related sources).

My personal experience in planning suggests that the most of these seemingly compelled choices involve the second retiring spouse, often the wife, who has had the benefit of experience with traditional Medicare. I find that they often welcome the opportunity abandon Medicare. I wondered how accurate my experience might be, and was surprised to learn that women make up roughly 75% of public school teachers and 80% of nurses, both significant state employee groups in many states. Women have historically been well-represented in public sector jobs, particularly in fields like education and health services, which dominate state budgets. My experience might be an accurate reflection of what other planners experience.

The article's framing suggests the existence of a "trap" without acknowledging that many beneficiaries may not want to switch, either because they are satisfied with MA or because traditional Medicare’s uncapped out-of-pocket costs (absent Medigap) are less appealing. The article could have strengthened its argument by delving into beneficiary satisfaction rates or real-world examples of switching difficulties, rather than leaving the claim as a broad assertion, but I assume the former statistics, particularly, don't support the argument.

The authors draw a parallel between MA’s growth and the privatization of Medicaid, noting that 74% of Medicaid beneficiaries are in private plans, often without choice. This comparison is intriguing but underdeveloped. Medicare and Medicaid serve different populations with distinct needs: Medicare’s is older, often healthier enrollees versus Medicaid’s low-income, higher-needs population, and the dynamics of privatization differ significantly. The article does not explain why MA’s privatization mirrors Medicaid’s beyond the lack-of-choice angle, nor does it address the historical policy decisions (e.g., the 2003 Medicare Modernization Act) that incentivized MA’s expansion through higher payments and marketing flexibility.

Furthermore, the authors gloss over the political and economic forces behind MA’s rise, such as lobbying by insurance companies or bipartisan support for market-based solutions in healthcare. Without this context, the critique feels surface-level, attributing MA’s dominance to employer decisions and beneficiary inertia rather than a deliberate systemic shift.

The article relies heavily on enrollment trends (e.g., the quadrupling of MA enrollment since the mid-2000s) and broad statements about employer practices, but it lacks specific, compelling evidence to support its more critical claims. For instance, the assertion that "more patients can be denied doctor-ordered care" in MA plans alludes to prior authorization requirements but offers no statistics on denial rates or their impact on health outcomes compared to traditional Medicare.

The article focuses almost exclusively on systemic downsides—cost, coercion, and care denials—while giving short shrift to why MA might appeal to beneficiaries beyond "lower premiums and co-pays and the promise of extra benefits." Surveys, such as those from the Commonwealth Fund, show that MA enrollees often report high satisfaction with care coordination and supplemental benefits like dental and vision coverage, which traditional Medicare lacks. The authors mention these attractions briefly but dismiss them as bait without exploring whether they deliver value for some enrollees. This omission creates a lopsided critique that paints MA as a net negative, ignoring the possibility that its growth reflects genuine demand rather than just manipulation or lack of choice.

The authors assert that MA "burdens taxpayers" by costing more per enrollee than traditional Medicare, a point often echoed in critiques of privatization. They cite the growth in enrollment as increasing this burden but provide no specific figures in the article to substantiate the scale of the overpayment (though related literature, such as from The Conversation’s other pieces, suggests an additional $83 billion annually). While this is a valid concern, studies like those from MedPAC have shown MA plans receive higher risk-adjusted payments due to upcoding of diagnoses—the article does not engage with counterarguments that MA plans might reduce certain costs, such as through preventive care or reduced hospital readmissions, which some research suggests they achieve more effectively than traditional Medicare.

Additionally, the piece does not compare the total cost of traditional Medicare (including supplemental Medigap plans and Part D drug coverage, which beneficiaries often purchase separately) to MA’s all-in-one model. For many beneficiaries, the out-of-pocket savings from MA’s lower premiums and cost-sharing could offset taxpayer overpayments in practical terms, a trade-off the article ignores. By framing MA solely as a taxpayer burden, presents a one-sided narrative that overlooks potential efficiencies or benefits that might justify its higher upfront costs.

Finally, the article raises concerns about MA’s dominance but stops short of proposing solutions or grappling with the feasibility of reversing the trend. If MA’s growth is problematic, what alternatives exist? Should policymakers cap enrollment, reform payment structures, or expand traditional Medicare’s benefits to compete? The authors call for understanding "why Medicare Advantage has become so popular," yet they do not venture into this territory themselves, leaving the critique incomplete. Without engaging with potential reforms, the piece risks being a lament rather than a constructive analysis.

The article effectively and undeniably highlights real issues with Medicare Advantage, its cost to taxpayers, the constraints it imposes on some beneficiaries, and the challenges of switching back to traditional Medicare. By framing MA’s rise as largely a product of coercion and inefficiency, it overlooks the complex interplay of beneficiary preferences, market dynamics, and policy design that have fueled its growth. A more balanced and thorough critique would have integrated these factors, provided richer data, and offered a path forward, rather than leaving readers with a one-dimensional warning about "privatization’s" perils.

2025 ABA Survey on State Elder Financial Exploitation Laws: Balancing Protection with Autonomy for Seniors Aging in Place

The American Bankers Association (ABA) Foundation's 2025 Survey of State Elder Financial Exploitation Laws offers valuable insights into how financial institutions are navigating the complex terrain of protecting older adults from fraud.  Released in March 2025, the report highlights the role of "hold" laws, statutes that allow financial institutions to temporarily delay or hold suspicious transactions, in preventing losses that could jeopardize seniors' ability to age in place.  Amid rising elder fraud complaints, which increased 14% in 2023 with estimated losses of $61.5 billion, per the Federal Trade Commission (FTC), these findings are crucial for elder law planning.

This article summarizes the survey's key results, explains state hold laws (with a focus on Ohio and Missouri), what consumers should know, and how seniors and families can benefit from, utilize, or advocate for these protections. 

Survey Results: Banks' Use of Hold Laws and Challenges in Fraud Prevention

Conducted from September 9 to October 8, 2024, the ABA survey polled 158 U.S. banks holding 71% of industry deposits, including 53.2% with assets under $1 billion. Key findings include:

• Prevalence of Hold Laws: As of January 2025, about half of U.S. states have enacted hold laws for depository institutions, typically applying to individuals aged 60-65 or older, or those deemed vulnerable under Adult Protective Services (APS) criteria.  These laws lack a federal equivalent but often provide "safe harbor" protections from litigation for good-faith actions.

• Utilization and Effectiveness: 54.4% of respondents operate in at least one state with hold laws, and among them, 50% have used these laws to delay, refuse, or hold transactions. This allows time for investigations, contacting trusted third parties, and collaborating with authorities. Utilization frequency varies: 40.5% rarely, 23.8% a few times monthly, and higher in some cases. 43% of utilizing banks find the laws useful in preventing exploitation, though 33.3% say it's too early to tell.  Nearly 90% of banks in non-hold states believe such laws would be beneficial.

• Collaborations and Challenges: Banks extensively partner with law enforcement (91.8% report suspicious activity) and APS (93.8% report cases), but challenges include litigation risks, inconsistent state laws, under-resourced agencies, and customer unawareness.   Customer reactions to holds are often negative (45.2%), sometimes leading to account closures (16.7%), but vary by situation.

• Recommendations: Banks advocate for federal legislation for consistency, stronger safe harbors, customer education, bank-to-bank communication, and flexible hold periods (e.g., up to 30 days, as desired by 28.6%). These results emphasize the importance of hold laws as a vital tool, preventing losses like a $30,000 scam in New Hampshire, but highlight the need for improvements to address lengthy investigations and customer education.

Understanding State Hold Laws: Transaction Holds and Delayed Disbursements

State hold laws authorize financial institutions to place temporary holds on transactions or delay disbursements when exploitation is suspected, providing a window for verification without immediate fund release.  Typically lasting 3-15 business days (extendable), they include mandatory reporting to APS or law enforcement, staff training in some states, and authorization to contact trusted contacts. Safe harbors protect banks from liability if actions are in good faith. Holds may be mandatory if directed by authorities. In practice, banks use them to investigate red flags like unusual transfers, educate customers, and prevent irreversible losses.

Hold Laws in Ohio and Missouri

As of October 2025, neither Ohio nor Missouri has enacted specific transaction hold laws for financial institutions in cases of suspected elder financial exploitation, according to FTC overviews and state statute reviews.  Instead, both states focus on reporting and penalties:

• Ohio: Ohio mandates reporting suspected exploitation to the Division of Securities and county Job and Family Services under its "Reporting Elder Financial Exploitation" law, Ohio Revised Code (ORC) §1707.49.  Banks must report to APS or law enforcement, but without hold laws, they lack explicit authority to delay transactions, increasing litigation risks. Protections exist under broader elder abuse statutes (e.g., ORC § 5101.60 et seq.), with penalties for exploitation including misdemeanors to felonies.  No hold durations or extensions apply, but safe harbors for good-faith reporting are available.

• Missouri: Missouri's RSMo Section 570.145 criminalizes financial exploitation with penalties ranging from misdemeanors (under $50) to class A felonies ($75,000+), including defenses for good-faith efforts but no specific holds. Reporting is mandated to APS, with investigations for abuse, neglect, or exploitation. Note that RSMo Section 192.2455 addresses recipient inability to give consent but lacks hold provisions. Banks in Missouri use trusted contacts and law enforcement partnerships, but without holds, interventions are limited.

What Consumers Should Know About Hold Laws

Consumers, especially seniors and retirees, should understand that hold laws (in about half of states) allow banks to pause suspicious transactions for older or vulnerable adults, buying time to verify the legitimacy of the transaction. They typically require reporting to APS/law enforcement and may involve notifying trusted contacts. Safe harbors protect banks from liability, but consumers might experience temporary inconveniences. In states without them, like Ohio and Missouri, banks rely on reporting and voluntary programs, potentially leaving gaps in protection. Know your rights: Holds are protective, not punitive, and can be challenged if unwarranted.

How Consumers Can Benefit From, Utilize, or Encourage Hold Laws

Hold laws benefit consumers by preventing irreversible losses from scams, as seen in survey examples where holds saved thousands.  For aging in place, preserved savings mean continued home care funding. Moreover, holds prevent losses that may cause family disputes, punitive actions against family members due to oversight failures, or the loss of a senior's decision-making authority through guardianship or conservatorship. To utilize:

• Designate Trusted Contacts: At your bank, name a reliable person for notifications during suspicions, essential in all states. 

• Educate Yourself: Attend bank workshops or use resources from AARP's Fraud Watch Network to recognize red flags. 

• Respond Proactively: If a hold occurs, cooperate with investigations to resolve quickly.

In Ohio and Missouri, and other states without hold laws, encourage adoption by contacting legislators or banker associations to advocate for federal consistency and safe harbors.  By supporting reform, consumers can push for broader protections, ensuring safer aging in place.

To safeguard against the rising tide of financial exploitation, older consumers and their families are strongly encouraged to schedule a meeting with a bank representative to explore the voluntary programs available at their financial institution. These may include trusted contact designations, which allow banks to reach out to a pre-approved family member or advisor during suspicious activity; transaction alerts for unusual withdrawals or transfers; and enhanced monitoring tools tailored for seniors. By discussing these options in person or virtually, you can learn how to easily implement them. This includes setting up account notifications via app or email, or integrating them with elder law tools like powers of attorney, to add an extra layer of protection without compromising autonomy. This proactive step not only empowers you to customize defenses against fraud but also fosters peace of mind, ensuring your hard-earned savings support independent living and aging in place.

For personalized advice, consult an elder law attorney. Visit our "Handy Link" for Ohio reporting or explore FTC tools for nationwide alerts. 

 Stay vigilant; knowledge is your best defense.

Irrevocable Medicaid Planning Trust Risks: State Refuses to Permit Trust Termination

In April 2011, Don and Marjorie Peterson (the Petersons) established the Peterson Family Irrevocable Trust (the trust). The Petersons’ daughter was the trustee, and their grandchildren were the beneficiaries. The Petersons’ personal residence was the only asset held in the trust. 

The intent in creating the trust was to shield their personal residence from being considered in determining Medicaid eligibility and claims arising from long-term care.  The trust had a common "comfort clause:" 

It is the specific intention of [the Petersons] to create the power in the Trustee and in said Trustee’s sole discretion under this Trust to provide income and support for [the Petersons] and Subsequent Beneficiaries and to protect the assets of the Trust pursuant to the conditions set forth in this Trust Agreement. Said income and support may include, but is not limited to, expenditures for [the Petersons’] and Subsequent Beneficiaries’ health, education, real estate purchases[,] and/or promising business opportunities. In order to protect the Trust assets, the Trustee in her sole discretion, may withhold distribution under circumstances in which [the Petersons] or Subsequent Beneficiaries will not personally enjoy said distribution; said circumstances, including but not limited to, insolvency, pending divorce[,] or other civil litigation and bankruptcy.

While in the control of the Trustee and until actually paid over to [the Petersons] thereof, the interest of [the Petersons] in the income or principal of the Trust shall not be subject to assignment or pledge by [Appellants], the claims of creditors of [the Petersons], or attachment by any legal or equitable procedure.

In re Peterson Family Irrevocable Trust, quoting the underlying court's opinion (brackets included, "Appellants" replaced with 'the Petersons").  

A "comfort clause" is a trust provision comforting the owner that they are not really turning ownership and control of assets over to third party, and that, if absolutely necessary, the trust assets can be used to support the owner. In the best cases these are requested by clients and adopted after careful advice and counsel.  In the worst cases these are deployed by drafters to make the document more "attractive" (read "sellable"), without advising the client of the risks.  "Comfort clauses" can make the owner more comfortable, but they can also threaten the integrity of the plan.  Consider the foregoing language against a more rigorous clause which follows:

The Trustee may, in its sole and absolute discretion, distribute such sums from the trust income and principal that the Trustee deems necessary or advisable to meet the health, education, and/or support needs of the  death/subsequent beneficiaries [in the case of the Petersons, the grandchildren], but shall make no distributions to or for the benefit of the Petersons. Other than the lifetime privilege to reside in any home owned by the trust while the Petersons are able to avail themselves of that privilege, under no circumstances shall the Petersons benefit directly or indirectly from the income or principal of the trust.

The latter is a much harsher statement, but it better comports with the requirements of most state Medicaid rules. 

Complicating matters, when the home was transferred to the trust, there were actual distributions made from the trust to the Petersons' estate.  According to the court, as a result of these transfers, the residence became a countable asset for Medicaid purposes.  Interestingly, neither court decision (lower court or appellate) explains what these transfers were, or how these transfers were possible given that both courts clearly state that the only asset of the trust was the Petersons' home. The courts also don't explain whether the transfers were forbidden under Pennsylvania law in place at the time the trust was settled, or whether they were made forbidden by subsequent changes to the law.

In January 2024, the Petersons filed a petition to terminate the trust, but their granddaughter, a named beneficiary, contested termination.  The Petersons based termination on two grounds.  First, the Petersons argued that the relationship between the Petersons and their daughter, the trustee, had dramatically changed thereby “rendering [the Trust’s] ongoing administration impracticable and wasteful.” Second, the Petersons argued that the trust’s purpose could not be fulfilled because, under the trust’s terms, their residence was a countable asset impacting their eligibility for Medicaid and subject to future healthcare claims under Medicaid.   

After a hearing, the court denied the Petersons’ petition to terminate the trust. On appeal, the Peterson's abandoned their first argument. It is intriguing to consider, though, whether the first argument, which clearly does not constitute grounds to terminate the trust, might be the actual basis of the Petersons' dispute. Unfortunately, disagreement with a trustee does not constitute grounds to terminate a trust; an inherent risk with irrevocable trust planning is that circumstances may change. Seeking removal of a trustee for breach of fiduciary duty or other infirmity would accomplish the same goal without necessitating termination of the trust. I will also note for the interested that the simple drafting solution to this type of scenario is a trust protector- an independent third party that can remove a trustee without cause. See, e.g., Unpacking Trustees- Primary, Successor, and Special Trustees, Trust Protectors and More. Even a decanting provision might have provided an alternate solution making "termination" unnecessary (let me know if you want me to write an article explaining "decanting").  The bottom line is that changes in circumstances won't always justify termination or reformation of a trust instrument. 

The Pennsylvania Superior Court addressed the sole remaining legal basis for termination: whether the Petersons’ mistaken belief that their trust worked for its intended purpose was an “unanticipated circumstance” under Pennsylvania’s Uniform Trust Act, 20 Pa. Stat. and Cons. Stat. Ann § 7740.2(a), which would permit the court to terminate the trust.  The Petersons contend that when they created the trust, their mistaken belief that it would preclude their residence from being considered for Medicaid eligibility and used to satisfy Medicaid healthcare claims was  an unanticipated circumstance.

The Court mostly agreed with the Petersons arguments. In its review, the court stated that a plain reading of section 7740.2(a) revealed that a trust may be terminated if, due to unanticipated circumstances, termination would further the purposes of the trust. The court noted substantial precedent establishing that the intent of a trust’s settlor, as set forth in the language of the trust instrument, must prevail. The court also found that the plain language of the trust agreement demonstrated the Petersons’ intention to create a trust that would provide income and support for their healthcare needs and protect their assets from creditors. Although the trust’s language did not explicitly provide that it was intended to shield the trust assets from Medicaid claims, it did specifically state that it was intended to protect the trust assets from claims arising from the Petersons’ debts or obligations, which would include claims for healthcare services provided by Medicaid.

The court agreed with the Petersons’ assertion that their personal residence may have been exempt from claims asserted under Medicaid if it had remained titled in their names instead of being held by the trust, and that due to the transfer of ownership to the trust, the residence was a countable asset if one or both of them applied for Medicaid.  The court agreed that the trust "no longer" protected the home from healthcare claims made under Medicaid. The court determined, however, that the Petersons’ misunderstanding of the legal consequences of the trust at the time of its creation was a "mistake of law" rather than an “unanticipated circumstance”—i.e., unforeseen facts about the future—that would permit the court to terminate the trust under section 7740.2(a). Accordingly, the court affirmed the lower court order denying the Petersons’ petition to terminate the trust.  

IF either the husband or wife ends up in a nursing home, and is forced to apply for Medicaid, the community (healthy) spouse could lose his or her home, or be forced to spend down its value.  This is a tragic result given that Medicaid protects the home for the community spouse when owned by both spouses.  In other words, if the Petersons had done nothing, the community spouse would have been able to rely upon the home being there for him or her for as long as they could enjoy it.  

More, the trust may have encouraged, rather than discouraged, family discord.  Rather than representing a unifying plan for the best interest of the Petersons and their family, the planning may have played a role in fracturing familial relationships.  The evidence is that a grandchild contested termination of the trust, in essence opposing their grandparents' wishes.  This is always a possibility with or without any estate plan, but family discord should always be a consideration, and granting grandchildren interests, rights, and privileges should always be considered carefully.  Without knowing the circumstances, it is difficult to make hard assessments, but one has to wonder why a daughter was made a fiduciary of the parent's assets, but not a beneficiary.  This anomaly might be well justified, or a warning sign of future problems, which might have been resolved with reconsideration of the plan or alternate drafting.          

Bottom line: irrevocable trusts have advantages and disadvantages, costs, expenses, and risks.  My experience is that these are rarely discussed thoroughly  or considered carefully.  Extra care must be taken when planning while both spouses are alive and healthy, especially given the protections built into Medicaid to protect spouses.  Any planning to avoid Medicaid spend down puts assets at risk of losing the already existing protections.  

It was not clear whether the subject trust was drafted by an attorney.  If it was drafted by an attorney, it may have been crafted or drafted poorly, or it may have been thoroughly misunderstood by the clients.  Even when provided clear written explanations of the limitations, risks, and costs of plans, sometimes clients misunderstand.  

If the Petersons drafted the trust themselves, or utilized a drafting service such as those available on the internet, they received the product they paid for.  Irrevocable trusts, like any complex legal document, should only be crafted and drafted by a competent lawyer representing YOU after s/he understands YOUR goals, circumstances and needs.  YOU deserve legal representation. YOU deserve to have YOUR rights and interests protected.  IF these rights and property interests are so valuable that you choose a complex plan to protect them, retain a lawyer to protect you. A computer, some software, a nameless, faceless representative behind a website, or an "estate planning professional" at a seminar  do not, and cannot serve this role.  Read the disclaimers!  

For more about the case: In re Peterson Family Irrevocable Trust, No. 772 WDA 2024, 2025 Pa. Super. 60 (Pa. Super. Ct. Mar. 13, 2025)(last accessed 4/3/2025).  

For more about the dangers of comfort clauses: 

• Irrevocable Trust Assets Found Available Resources for Medicaid in Arkansas 
• Irrevocable Trust Fails to Protect Assets from Availability for Medicaid 
• "Comfort Clauses" Hobble an Irrevocable Trust for Medicaid Planning 

Recent Criticism of Organ and Tissue Donation: "NO!," the Transplant System is NOT ‘in Chaos’!

According to a recent article in the New York Times, there are issues within the U.S. organ transplant system about which you should be aware if you are a person awaiting an organ transplant, or an intended recipient (the NYT article is behind a pay wall, but you can access the article for free in the Virgin Islands Daily News by clicking here).  If one could believe the headline, the "organ transplant system" is  "in chaos."  The headline is clearly exaggerated and untrue.   

Before delving into the specifics of the article, however, these challenges do not regard organ procurement or recovery.  In other words, please do not reconsider a donation!  If anything, the article raises issues that would be resolved by a larger supply of donors and donor organs.  In other words, the criticism does not, and should not, mean that if you are an intended donor, that your gift will not be honored.  

The article focuses on the practices of providing organs to patients on a waitlist.  According to the article, procurement organizations like Lifebanc in Northeast Ohio, and Legacy of Hope in Alabama sometimes provide organs to patients that are not at the top of a waitlist.  The story highlights the plight of Marcus, a man who reportedly was "next in line" for a kidney transplant, but who has been "skipped" multiple times in favor of patients at different hospitals. According to the Times, the practice of directing donations that do not strictly follow the "official waitlist" raises concerns about fairness and transparency in organ allocation, especially since some hospitals appear to benefit more than others.

The broader question raised by the authors is whether the U.S. organ transplant system, controlled by a single national network,  lacks transparency, leading to what some believe are inequities in who receives life-saving organs. Reforms have been proposed to increase accountability and ensure that the "official waitlist" is followed more strictly. Some argue that systemic changes are needed to prevent hospitals from unfairly influencing organ allocation and to ensure that every patient has a fair chance at receiving a transplant.  Of course, the article does not discuss or explore whether deviation from the official waitlist has any explanations or virtues, or whether strict reliance upon a waitlist might be disadvantageous.   

The article admits, for example, that there is already a highly regulated "official waitlist." The Times article doesn't really explain "why" patients like Marcus are skipped.  The Times did commission a survey showing that more organs in such cases go to hospitals with what it characterizes as "close ties" to organ procurement networks. The fact that hospitals with ties to organ procurement organizations receive more organs, however, may just reflect the fact that they conduct more donor recoveries and organ transplants, and are therefore more likely to be able quickly stand up a transplantation surgery reducing risk of loss of a donated organ.  The authors imply that any deviation from the list results from undue and unfair influence, and is therefore suspect, but the authors don't explore alternate explanations.  

The article is replete with strong denunciations by some advocates with little explanation why procurement organizations might "favor" one hospital over another.  Of course, procurement organizations haven't helped themselves, because they have not responded to the criticism.  There is no response from either procurement organizations or hospitalists regarding either the survey findings, or the rationale for anomalies explaining why a person might be "skipped."  I sought a response from two procurement organizations with which I am familiar, sharing the broad outline of my intended article, and I was unable to garner comment or response, but, that may reflect nothing more than a disciplined strategy regarding  public communication.

I am not  a doctor, but I suspect that there may be a variety of reasons, admittedly frustrating to a waitlist patient, that explain such anomalies.  For example, the relative proximity of the patient to the recovered organ (long trips for recovered organs present risks) might explain a skip.  The temporal availability of the patient, transplant teams, and/or operating rooms to make use of the recovered organ might explain anomalies (larger hospitals with large surgical staffs may simply be "ready," and/or one patient may relatively make a better candidate "in the moment" than another, regardless of list placement.  There may also be a variety of risk factors specific to a particular patient, hospital, transplantation, or transport.  Any or all of these seem to be pretty obvious possible explanations for deviating from a list. 

It is also possible that list anomalies occur as a result of the HIV Organ Policy Equity Act (HOPE ACT). What is the Hope Act?  It is the Act which permitted HIV positive individuals to make donations of organs and tissue. Until 2013 it was against federal regulation to transplant organs from someone who was HIV positive into a potential organ recipient, even if the intended organ recipient was also HIV positive. In 2013, these HIV prohibitions were deemed outdated by Congress and lifted. The HOPE Act directed the Health and Human Services (HHS) Secretary to develop guidelines to conduct research relating to HIV positive donors and organ transplantation.

Current regulations ensure that an HIV negative recipient does not receive an organ from a HIV positive donor, but HIV positive donors can donate organs and tissues to other HIV positive recipients. The HOPE Act simply gives more people a chance to donate life. Given the limited number of transplantable organs available for the more than 120,000 people who are awaiting transplants, it makes sense to find all possible ways to safely and ethically save as many lives as possible.  But, it also means that any particular organ may not be suitable for the person at the top of the list.  Of course, these details cannot be shared, due to medical privacy (HIPAA).  A doctor can't tell a reporter or a recipient that an organ is positive or negative because that violates the medical privacy of the organ recipient, potentially disclosing a patient's HIV history. I suspect there are similar restrictions for other health attributes, but I am just spit-balling here. The point is that I would be shocked, given such considerations, if every available donor organ went precisely to the next person on the list.

I get a sense when reading the article that at least some critics treat organs like product deliveries from Amazon: "I ordered first, so I should get mine first." The waitlist, however, isn't a "line" at the car wash where the first in line is always, or even should be, served first. 

I formerly taught medico-legal documentation and deposition preparation and conduct "classes" during Grande Rounds at a local teaching hospital.  I considered the opportunity  to work with such amazing minds a privilege and an honor.   I was amazed and impressed at the vast array of variables and considerations medical professionals in a hospital consider and resolve in making even routine decisions.  My strong suspicion is that the article, while certainly well researched, supported, and written, from the standpoint of a layperson, could not begin to report fairly to a lay audience the myriad reasons a simple list is not reflexively adhered to in making such momentous decisions. That does not mean that there may never be some form of corruption in the system, but the mere possibility of corruption extrapolated from a few cases should be considered critically. 

Regardless, if you are a donor awaiting a transplant, you should be aware of the facts, and better, be prepared for possible frustration and/or disappointment.  I would encourage those in positions of responsibility, if they don't already, to explain to patients and families that the waitlist is not a strict line, and manage expectations, frustrations, and disappointment.  Especially for those clinging to last hopes, honestly managing expectations would seem both moral and necessary. 

I also want to be careful that my criticism of the Times article is not woven into the  rhetorical crutch, "fake news." Reporting that raises awareness, asks questions, and challenges, even if by casting circumstances in the worst possible light, should be celebrated.  I am not suggesting that the authors engaged in shoddy reporting; as discussed I believe that the authors cast is probably limited by the fact that they aren't surgeons, hospitalists, or professionals routinely dealing with organ procurement and transplantation questions or concerns.  Professionals understand and appreciate, or should, that these articles, headlines, and narratives may not reflect the "whole story," just like a client's or patient's fears, apprehensions, or concerns, are usually not based upon the "whole story."  To the anxious or frightened layperson, though, these emotions are the only story.  That is why professionals work so hard to cultivate good productive relationships with clients/patients, and where appropriate, their families, so that their decisions and risks can be evaluated carefully, based upon their specific circumstances, thereby leaving them with only appropriate concerns, and realistic expectations.  Reporters, admittedly, are not in that "business."  

Full disclosure: both my wife and I were Ambassadors for Lifebanc.  My clients can attest, though, that I never, professionally "encourage" or "discourage" donation; as a lawyer my  professional responsibility is to see my client's wishes fulfilled.  Most clients have made decisions regarding donation prior to settling an estate plan. I can sometimes play a role in answering questions regarding the procurement and recovery process, and dispel unfounded fears or concerns (the most common being that the family of of a donor bears the cost of organ recovery), but my role as an "advocate "is appropriately left to seminars, public forums, and articles.          

For more information see Bryan M. Rosenthal, Mark Hansen and Jeremy White, "Organ Transplant System ‘in Chaos’ as Waiting Lists Are Ignored," New York Times, March 10, 2025. 

Trump Administration Removes Burdens and Threats of the Corporate Transparency Act (CTA)

The following is from a Treasury Department Announcement issued March 2, 2025:

The Treasury Department is announcing today that, with respect to the Corporate Transparency Act ("CTA"), not only will it not enforce any penalties or fines associated with the beneficial ownership information reporting rule under the existing regulatory deadlines, but it will further not enforce any penalties or fines against U.S. citizens or domestic reporting companies or their beneficial owners after the forthcoming rule changes take effect either. The Treasury Department will further be issuing a proposed rulemaking that will narrow the scope of the rule to foreign reporting companies only. Treasury takes this step in the interest of supporting hard-working American taxpayers and small businesses and ensuring that the rule is appropriately tailored to advance the public interest.

U.S. Secretary of the Treasury Scott Bessent issued the following statement:

"This is a victory for common sense.  Today’s action is part of President Trump’s bold agenda to unleash American prosperity by reining in burdensome regulations, in particular for small businesses that are the backbone of the American economy."

Prior to this announcement, there was a great deal of uncertainty regarding the risk of non-compliance with the Act's reporting requirements.  There were several lawsuits seeking to block implementation of the Act.  On January 7, 2025, the U.S. District Court for the Eastern District of Texas issued an order staying FinCEN’s regulations implementing the BOI reporting requirements, precluding FinCEN from requiring BOI reporting or otherwise enforcing the CTA’s requirements. On February 5, 2025, the U.S. Department of Justice—on behalf of Treasury—filed a notice of appeal of the district court’s order and, in parallel, requested a stay of the order during the appeal.

On February 18, 2025, the court agreed to stay its January 7, 2025, order until the appeal is completed. Given this decision, FinCEN’s regulations implementing the BOI reporting requirements of the CTA were no longer stayed. Thus, subject to any applicable court orders, BOI reporting was finally mandatory, but FinCEN notified the courts and the public that it would be providing additional time for companies to report.

The United States Corporate Transparency Act (the “CTA”) became effective at the start of 2024. Under the CTA, your company may have been be required to report its “beneficial owners” to the Financial Crimes Enforcement Network (“FinCEN”), a bureau of the Treasury Department charged with protecting the US financial system from illicit use, fighting money laundering and promoting national security. Failure to report risked significant fines and penalties for both companies and for their beneficial owners.  The law also exempted large and publicly traded companies. focusing instead on smaller entities, like small limited liability companies, corporations, and partnerships. 

The CTA requires non-exempt existing companies to file a report with FinCEN before the end of the 2024 calendar year and requires companies that are newly created or registered to file a more detailed report within 90 days after the company is first organized or registered in the US. The CTA also requires companies to update these filings within 30 days of any change in previously filed information.

The CTA only applies to organizations that either(a) are formed by making a filing with a state’s Secretary of State (or other office charged with forming entities) or (b) are foreign companies that have registered to do business in the United States by making a filing with a state Secretary of State (or other office). So, the CTA does not apply to sole proprietorships, general partnerships or (depending on state) unincorporated nonprofit associations, or trusts.

The CTA contains 23 exemptions for various types of companies. Most of these exemptions are for companies which are already subject to a high amount of regulation, such as public companies, banks, insurance companies, other types of financial firms and utilities. There are also exemptions for certain types of entities where either Congress or FinCEN believed the burden of reporting would be inappropriate or unnecessary. These include tax-exempt entities, including most charities, and certain inactive entities. Importantly, The CTA also has an exemption for larger companies who meet certain employment and income thresholds and which also have operating offices in the U.S.