Last year S. 3270 was introduced, proposing numerous changes to the VA pension program, including a lookback period and a penalty period for transfers made prior to qualifying for the VA pension program.  The bill was not passed, and on April 17^th, a nearly identical bill was introduced, S. 748.

A hearing is set for May 15, 2013 before the United States Senate Committee on Veterans Affairs.  For more information on S. 748, visit http://beta.congress.gov/bill/113th-congress/senate-bill/748?q=s748.

ElderCounsel is closely monitoring these activities and will post updates as they become available.

Included in ElderCounsel’s membership is a practice building roadmap that many new ElderCounsel members follow.  We call it, “Your Practice Gameplan™.”  This Gameplan is a combination of one-on-one coaching, webinars, and self-guided instruction which are all overseen by the member’s personal Member Representative.  The goal of Your Practice Gameplan™ is to help the attorney become profitable in their elder law practice as quickly as possible!  As part of Your Practice Gameplan™, members are offered the opportunity to be coached by Steve Riley, a Certified Atticus Practice Advisor.  Through a series of webinars, worksheets and phone calls, Steve works with attorneys of all firm sizes to help them take better care of their clients, increase their income, decrease their stress, and improve the quality of their life.  All who have completed Your Practice Gameplan™ rave about its success and have the thriving practice to prove it!

                I’ve embarked on the Your Practice Gameplan™ journey as part of my professional development to grow in my role with ElderCounsel and to help ElderCounsel be successful.  The member is asked to come up with a vision for their practice when completing the Gameplan. The next step is to come up with ten crucial goals and explain why these goals are crucial to their vision, and to develop an action plan to achieve these goals.  I thought I’d share how I’ve already achieved success by participating in Your Practice Gameplan™ through the steps I’ve taken to attain just one out of the ten goals I laid out.

               The very first goal that Steve advises you to create is a health goal.  Since I run for exercise, , I decided I would take my running to the next level and create a goal to run a half marathon before the end of the year.  You may be asking, “Why is this a crucial goal to the vision that I’ve laid out for myself?”   Well personally, I believe physical health dictates mental health. If I’m at my best physically, I will be at my best mentally allowing me to succeed in my professional endeavors. Once I established my goal and the reason for why it is crucial, my next step was to spell out the action plan I would need to follow to achieve my goal.  First, I wrote that I’d need to run at least five times a week.  Second, I wrote that I would sign up and participate in races to prepare me for the half marathon.  Then for my third action item I thought,  well what can I do to make sure I will want to run a half marathon and whatever that is, it will be the third action item.  I decided I had to make running fun!  Many would say this isn’t possible but I’ve found ways to make it so!

 This past weekend I participated in the Graffiti Run 5k in Denver.  In this particular race, runners wore all white and ran through an amusement park while volunteers, spectators and fellow runners threw colored powder at them.  The color throwing started before the race had even begun and by the time my wave was at the start line, I was already covered head to toe in pink, orange and blue.  The race was a joy, whenever it got tough there were other excited runners cheering you on and to run through the amusement park was such a great experience, I felt like I was getting a behind the scenes tour!  By the end of the race, each runner’s previously bland outfit (and entire body) had been tie-died all colors of the rainbow.  Most of us didn’t even realize we had just completed 3.1 miles, we were having too much fun!  I completed that race excited to do other races and motivated to push myself even more.  I returned to work the next morning in a great mood, energized and ready for the day.  I was also able to say with pride that I had accomplished at least two of the action items I laid out to achieve my health goal.

Ready to run through the “Green Zone”

The Aftermath!!

                While I can go on and on about running, the point of this story is to give an example of how working on your crucial goals is conducive to your professional success.  I felt good about myself after I completed that race and more driven to continue to reach my goal of completing a half marathon.  Moreover, keeping myself active allows me to have a clear head and I actually feel more invigorated while I’m completing my work.   This in turn allows me to be a better ElderCounsel team member and perform at a higher level.  I’m achieving the vision that I set at the beginning of Your Practice Gameplan™ and I’m only on my first goal!  Steve advises you to keep your goals posted in plain sight, somewhere you will always see them and therefore be held accountable to them.  I keep my goals right above my desk and I always smile when I see how much I’ve already achieved.  While I have nine other goals that I am working on and have more work to do to achieve my health goal, I’ve come full circle already.  More importantly, I already see the effect of how Your Practice Gameplan™ is helping me to succeed.                 

               To learn more about how to become an ElderCounsel member and participate in Your Practice Gameplan™ please contact our Member Recruitment team at sales@eldercounsel.com. 

Aylin Guven

Administrative Assistant, Member Recruitment

I knew exactly what I was going to write about when we were asked to contribute to the blog at ElderCounsel…..and then it became a national news story!  While this story was reported a few weeks back, I still feel the trek to Base Camp on Mt. Everest by a vibrant teenager from my hometown of Bend, OR bears repeating.

Elisha Reimers is the eldest of 5 kids, loves the outdoors, sports, and has Downs Syndrome. In March, a friend of mine joined his team on the trek with the purpose of documenting the journey as well as to tell Eli’s story as he attempted to ascend to the foot of the world’s highest mountain. He is the first person with Downs Syndrome to attempt such a feet. The purpose of the trip was to raise awareness and funds for ‘The Elisha Foundation’ (TEF)http://theelishafoundation.org/. Their goal was to raise $85,000 and they are well past $100,000 as this story became a national headline. Here is Eli as he reached Base Camp on Mt Everest.

The struggle the team faced on the mountain poetically mirrors the struggle of a family caring for a loved one with a disability. The difference….a trek to Base Camp will last a few weeks, but caring for a person with a disability will last a lifetime. This is where The Elisha Foundation (TEF) comes in. Through its Respite, Retreat & Reach programs, TEF provides encouragement, community and rest to those burdened with the care of a disabled person. They also help educate and support people around the world with resources to provide proper care and help to break down barriers that are faced by families caring for those with a disability.

A tidbit from the trail that wasn’t in the news……from my friend that went on the trek with Eli:

“The very first time I met Eli (at LAX for this trip) he told me many tales about his beloved [gluten free] BBQ chips We had one can of chips that we left back at our hotel in Kathmandu, it served as a lot of inspiration for Eli’s trek to Base Camp. We literally made up songs about these chips on the trail, talked about them dozens of times a day, and would dream each night about these tasty little snacks. TODAY (back from the mountains and a successful attempt at Everest Base Camp) we have opened the BBQ chips and celebrated Eli’s victory!”

TEF has recently begun a ministry in Ukraine. There is a huge social stigma in Ukraine against people with disabilities and generally speaking, they are not seen as real people. Parents are strongly encouraged to put their special needs children into an orphanage which has led to over-crowding and poor conditions. Parents who decide to keep their disabled children at home are faced with unbelievable challenges and live in isolation. The new work in Ukraine is a grassroots effort near the city of Chernigiv that was launched this past summer when Justin (Eli’s father) took the whole family (including all 5 kids) to live in Ukraine for 3 months while they got the programs started. They are empowering locals to educate their community and providing resources for families that are caring for someone with a disability.

Although we are not hiking mountains, the work of our members and team at ElderCounsel benefits those adults and children with special needs.  And, this year we have made a commitment to greatly enhance our existing special needs planning library of documents and education as this is an area that we feel very strongly about.  Our goal is to equip attorneys with the best documents and education possible!

Melissa Johnson

Project Coordinator/Executive Administrative Assistant

I have been a vegan for two years which means I don’t eat any animal products.  No meat, no dairy, no fish, no eggs, not anything from animals.  One of the most common reactions I get from others about this is, “But where do you get your protein?” 

Most of us know that protein is an important nutrient.  However, it seems widely unknown that there are many other alternatives to meat for our protein source.  I am by no means an expert on nutrition, but I am really interested in it and love to learn about it.  Two years ago I was eating meat and dairy every day.  Ever since I adopted a vegan diet, I’ve really enjoyed discovering all of the plant-based and whole food protein sources, as well as many delicious meat alternatives.

Did you know that plant-based protein sources often have a significantly lower percentage of calories from fat than animal protein sources?  For example, 80% of a steak’s calories are from fat (mostly saturated), while only about 5% of a cup of beans’ calories are from fat (unsaturated).  Plant-based sources also tend to be higher in fiber and complex carbohydrates, AND they are cholesterol-free. 

Some plant-based protein sources:

Legumes – beans, peas, lentils

Grains– oats, quinoa, rice

Vegetables – kale, spinach, brussels sprouts, broccoli

Some tasty meat alternatives that are high in protein:

Tofu

It’s made from soybeans.  Pretty bland all by itself, but it absorbs the flavors of the other ingredients you pair it with.  It’s high in protein and iron, low in fat and calories.  Tofu is also an amazing alternative to eggs.  When you break it up into an eggy texture and cook it with other vegetables and seasoning, you can make some really convincing tofu scrambles!

Tempeh

My personal favorite.  It’s also made from soybeans, but it has a firm, nutty texture.  Originally from Indonesia, but it’s becoming more and more popular here.  You can find it in the refrigerated section of most grocery stores, and they even have different flavors now – like maple bacon or sesame garlic.  You can cut it into strips, or break it down like ground meat before cooking it.  I like to put it in tacos, use it in a vegan “Bolognese”, mix it into vegetable stir fries, or use it as the bacon in a vegan BLT.

Veggie burgers or sausages

Veggie burgers are delicious.  You just have to find the right kind.  I’ve had them that are boring tasting, and others that are super tasty.  Have you ever had a black bean burger?  You definitely need to try one.  My boyfriend is not at all a vegetarian, but even now he prefers veggie burgers…… sometimes.  He likes that they never make him feel overly full and weighed down.  Vegetarian sausages are also available at most grocery stores.  I love the Field Roast brand and all of their different flavors.    

So now you have an idea of other protein sources that do not come from animals.  There is also a lot of research under way to create more plant-based alternatives to meat.  You can check out this Bill Gates video (it’s only about a minute long) that explains more about “The Science Behind Plant-Based Proteins”:

http://www.youtube.com/watch?feature=player_embedded&v=jjlVq5GiHbo

Enjoy!

Courtney Santoro

Member Services Representative

If you are a member who subscribes to ElderDocx and/or WealthDocx in the Cloud – or if you are considering it, you may have asked yourself what to do with the documents and answer files that you currently have on your local computer or network.  The good news is that you can transfer them to the Cloud, giving you access to your files wherever you have internet access and an internet capable device.

When you are logging in to the Cloud, you have the option to allow access to your local files and locally connected devices.  Once you permit the access, you can now ‘see’ your local drives from Word, or when browsing using Windows Explorer in desktop full screen mode.  The names of any local drives will be followed by a ‘$’ sign, so your C: drive will be named C$.  Your Cloud drive is G:\Law Office Files, and you can create subfolders there to fit your needs.  You can open files, including documents and answer files, on your local computer and on your cloud drive, and copy files between them.

Why would you want to store your answer files and assembled documents in the Cloud? Imagine working on an interview at the office, and then continuing where you left off on a different computer away from the office.  It doesn’t matter if one device is a Windows PC, and another is an iPad, Mac, tablet or smartphone – you can start on one device and continue on another.  As long as you have internet access, you are good to go!

To learn more, please visit http://www.eldercounsel.com/Attorneys_CloudAccess.aspx

This is a personal story from of member of our ElderCounsel team who lives with a son with diabetes.

August 31^st 2012 is a date that I will never forget.  This is the day my 10 year old son was diagnosed as a Type 1 Diabetic.  My son plays youth football and is usually pretty active during both practice time and game days.  I started to notice the slowness and lack of energy with both football and school.  There was also the excessive drinking and more than usual bathroom trips.   I chalked it up to coming off of summer break and getting back into the routine of both School and Football.  Finally I had enough and wanted to make sure there wasn’t something more to his behavior change.  While describing my son’s symptoms to the Pediatric doctor, he immediately pricked his finger and tested his blood on what I now know was a Glucose monitor.     The Doctor said three numbers “563” and at the time I didn’t understand what that meant, and then came the dreaded word Diabetic.  I was in complete shock.  The only words that came from my mouth were “Are you serious”.   I was in total dismay that this was happening to my baby who was also totally clueless as to what Diabetic meant.  The Doctor scrambled quickly to get us to our local hospital that specializes in Endocrinology.   The drive to the hospital felt like an eternity and in all actuality it was only 30 minutes, I began making phone calls to my family in which I could no longer hold in my emotions.  I think I cried my eyes out to everyone I spoke with.  My son’s life was changed forever.

As my husband, son and myself spoke with the Endocrinologists and went through a short class on how to treat Diabetes it was quite overwhelming, so much to learn in a short period of time.  The three of us were shown how to perform a Glucose test and administer insulin and shown what to eat and what not to eat.  I know my brain was spinning out of control trying to soak up all what we had been taught.  During the class my son was given insulin and it was so amazing at how his attitude became up beat and his energy level increased.  He was like a new kid.  I was so sad to have this happen but on the other hand I was happy to know that he could be the happy, energetic kid he’s always been.

For those who are not familiar with the facts about Diabetes I have shared a bit of information below that I have learned.

Diabetes is a disease that affects how the body uses glucose, the main type of sugar in the blood. Glucose comes from the foods we eat and is the major source of energy needed to fuel the body’s functions.  After you eat a meal, your body breaks down the foods you eat into glucose and other nutrients, which are then absorbed into the bloodstream from the gastrointestinal tract. The glucose level in the blood rises after a meal and triggers the pancreas to make the hormone insulin and release it into the bloodstream. But in people with diabetes, the body either can’t make or can’t respond to insulin properly.

Since our families discovery, I have spent hours researching and learning about diabetes. It has brought more awareness to our life of those that are challenged by health related issues.  My position at ElderCounsel as a Member Services Representative has allowed me to work with attorneys who help children and adults with special needs. It has been rewarding to work with a community of professionals that are committed to helping individuals that face special challenges every day.

Recently, there was a post on the ElderCounsel Members listserv posing the question, “What is the BIGGEST advantage that Direct Mail has over on-line marketing?”

Several members offered some very good answers including:

• Direct mail is much more likely to be opened and read.
• It is more targeted.
• Your social media audience may not even be online.
• Direct mail may have a shelf life.

When someone is reading your direct mail piece, they are not reading something else at the same time (compared to being on the web).

All of these responses are great tactics about TRAFFIC and REACH.  They are not, however, STRATEGY.  The tactics question, however, is relevant only subsequent to a well thought out and articulated marketing strategy.  Solutions to achieve TRAFFIC (number of readers) and REACH (speaking to your target audience) are only effective when incorporated into a marketing strategy.

In the franchise world, successful brands begin with “FOUR WALLS MARKETING” before executing “traffic” and “reach” tactics.  By four walls marketing, we mean, what is happening in your business: What is the experience of a client who calls your office?  How well is your office managed?  Are your employees happy?  Is customer service and professionalism a daily dynamic in your practice?  What is the appearance of your waiting room?  Do you have documented systems? Have you made accommodations for elders?

If your “Four Walls Marketing” is meeting your expectations, then it is time to lay out a six-month marketing plan.  A good plan will include:

1. An accurate description of your target market (and what are his/her needs, stress points and areas where you can uniquely help him/her).
2. A geographic description of where your clients are located.
3. It will have a good mix of firm branding and traffic building communications.
4. A financial budget and calendar.
5. And most importantly, a way to track results.

This is a very brief commentary and ElderCounsel is excited to work with its members in all areas of practice building and excellence.

John Shickich, JD (Certified Franchise Executive)

Director of Member Recruitment

ElderCounsel, LLC

ElderCounsel® is pleased to announce cloud-based versions of their popular ElderDocx® document-assembly program.  ElderDocx is a Hot-Docs based program that runs in a Windows environment.  A move to a Cloud-Based environment (meaning the program works on the internet) means the software will run on any computer, tablet or smartphone and is not reliant on Windows.

The move was made in response to requests from members of the two organizations who wanted the convenience and mobility of cloud-based software.

ElderCounsel spent the past year researching, testing, and building the most secure, agile, and user-friendly systems based on cloud server technology to offer a Cloud solution to its members.

The new cloud version of ElderDocx will enable its members to:

• Assemble documents and access their mission-critical files from any computer with Internet access
• Utilize and share the organizations’ entire library of tutorials, webinars, and education, via the Internet, anywhere — anytime
• Receive all ElderDocx updates instantaneously—with no installation required
• Forget hard drive space limitations and the hassle of downloading software updates
• Minimize risk by storing files on a reliable, secure platform where data is automatically encrypted and backed-up
• Maximize their devices—since the cloud-based systems are fully smartphone and tablet compatible.

To learn more, please visit http://www.eldercounsel.com/Attorneys_CloudAccess.aspx.

No one likes to think about the possibility of their own disability or the disability of a loved one. However, as we’ll see below, the statistics are clear that we should all plan for at least a temporary disability.

Disability planning is one area where elder law attorneys can give each and every person and family they work with great comfort in knowing that, if the day comes for themselves or a loved one, they will be prepared.

Most Individuals Will Face At Least a Temporary Disability
Study after study confirms that nearly everyone will face at least a temporary disability sometime during their lifetime. More specifically, one in three Americans will face at least a 90-day disability before reaching age 65 and, depending upon their ages, up to 44% of Americans will face a disability of up to 4.7 years. On the whole, Americans are up to 3.5 times more likely to become disabled than die in any given year.

Many Persons Will Face a Long Term Disability
Unfortunately, for many Americans the disability will not be short-lived. According to the 2000 National Home and Hospice Care Survey, conducted by the Centers for Disease Control’s National Center for Health Statistics, over 1.3 million Americans received long term home health care services during 2000 (the most recent year this information is available). Three-fourths of these patients received skilled care, the highest level of in-home care, and 51% needed help with at least one “activity of daily living” (such as eating, bathing, getting dressed, or the kind of care needed for a severe cognitive impairment like Alzheimer’s disease). The average length of service was 312 days, and 70% of in-home patients were 65 years of age or older. Patient age is particularly important as more Americans live past age 65.

The Department of Health and Human Services also estimates that 9 million Americans over age 65 will need long term care in 2011. That number is expected to increase to 12 million by 2020. The Department also estimates that 70% of all persons age 65 or older will need some type of long term care services during their lifetime.

The Alzheimer’s Factor
Alzheimer’s is growing at an alarming rate. Alzheimer’s increased by 46.1% as a cause of death between 2000 and 2006, while causes of death from prostate cancer, breast cancer, heart disease and HIV all declined during that time period.

In 2010 The Alzheimer’s Association published a report titled, “Alzheimer’s Disease Facts and Figures” that explored different types of dementia, causes and risk factors, and the cost involved in providing health care, among other areas. In this report were some eye-opening statistics:

An estimated 5.3 million Americans of all ages have Alzheimer’s disease. This figure includes 5.1 million people aged 65 and older and 200,000 individuals under age 65 who have younger-onset Alzheimer’s.

One in eight people aged 65 and older (13%) have Alzheimer’s disease.

Every 70 seconds, someone in America develops Alzheimer’s. By mid-century, someone will develop the disease every 33 seconds.

The number of people aged 65 and older with Alzheimer’s disease is estimated to reach 7.7 million in 2030 – more than a 50% increase from the 5.1 million aged 65 and older currently affected.

By 2050, the number of individuals aged 65 and older with Alzheimer’s is projected to number between 11 million and 16 million – unless medical breakthroughs identify ways to prevent or more effectively treat the disease.

Caregivers are at risk of developing health problems.  There were approximately 10.9 unpaid caregivers (family members and friends) providing care to persons with Alzheimer’s or dementia in 2009. According to the Alzheimer’s Association, those persons are at high risk of developing health problems, or worsening existing health issues. For example, family and other unpaid caregivers of people with Alzheimer’s or another dementia are more likely than non-caregivers to have high levels of stress hormones, reduced immune function, slow wound healing, new hypertension and new coronary heart disease.

Spouses who are caregivers for the other spouse with Alzheimer’s or other dementia are at greater risk for emergency room visits due to their health deteriorating as the result of providing care. A study mentioned in the 2010 Alzheimer’s Association report found that caregivers of spouses who were hospitalized for dementia were more likely than caregivers of spouses who were hospitalized for other diseases to die in the following year.

Receiving care.  According to the National Nursing Home Survey 2004 Overview, the national average length of stay for nursing home residents is 835 days, with over 56% of nursing home residents staying at least one year. Significantly, only 19% are discharged in less than three months. Those residents who were married or living with a partner at the time of admission had a significantly shorter average stay than those who were widowed, divorced or never married. Likewise, those who lived with a family member prior to admission also had a shorter average stay than those who lived alone prior to admission.

While a relatively small number (1.56 million) and percentage (4.5%) of the 65+ population lived in nursing homes in 2000, the percentage increased dramatically with age, ranging from 1.1% for persons 65-74 years to 4.7% for persons 75-84 years and 18.2% for persons 85+. According to the U.S. Census Bureau, in 2009, 68% of nursing home residents were women, and only 16% of all residents were under the age of 65. The median age of residents was 83 years.

According to the MetLife 2010 Mature Market Institute, current estimates indicate that nearly 1 million people live in approximately 39,500 assisted living residences in the U.S. The average age of an assisted living resident is 86.9 years old, and the median length of stay in assisted living is 29.3 months.

Long-Term Care Costs Can Be Staggering
Not only will many individuals and families face prolonged long term care, in-home care and nursing home costs continue to rise. According to the 2010 MetLife Market Survey of Nursing Home, Assisted Living, Adult Day Services, and Home Care Costs national averages for long term care costs are as follows:

Monthly base rate (room and board, two meals per day, house keeping and personal care assistance) for assisted living care is $3,293 or $39,516 annually, a 5.2% increase from 2009.

Daily rate for a private room in a nursing home is $229, or $83,585 annually, a 4.6% increase over the 2009 rate.

Daily rate for a semi-private room in a nursing home is $205, or $74,825 annually, a 3.5% increase over the 2009 rate.

Hourly rate for home health aides is $21, unchanged from 2009.

These costs vary significantly by region, and thus it is critical to know the costs where the individual will receive care. For example, the average cost for a private room in a nursing home is much higher in the Northeast ($381 per day, or $139,065 annually, in New York City) than in the Midwest (only $174 per day, or $63,510 annually, in Chicago) or the West ($238 per day, or $86,870 annually, in Los Angeles).

Long-Term Care Insurance May Cover These Costs
If a parent, their spouse, or family member needs long term care, the cost could easily deplete and/or extinguish the family’s hard-earned assets. Alternatively, seniors (or their families) can pay for long term care completely or in part through long term care insurance.

Most long term care insurance plans let the individual choose the amount of the coverage she wants, as well as how and where she can use her benefits. A comprehensive plan includes benefits for all levels of care, custodial to skilled. Clients can receive care in a variety of settings, including the person’s home, assisted living facilities, adult day care centers or hospice facilities.

Planning in the Event Long Term Care Insurance is Unavailable or Insufficient
Unfortunately, many older Americans will either be medically ineligible for long term care insurance or unable to afford the premiums. In that event, more aggressive planning should be considered as early as possible to make sure life savings are not depleted as a result of having to pay out-of-pocket for care. With the help of an elder law attorney, a plan can be created that will protect much of the assets of an individual or couple that would otherwise be at risk of being depleted.

All Planning Should Thoroughly Address Disability
When a person becomes disabled, he or she is often unable to make personal and/or financial decisions. If the disabled person cannot make these decisions, someone must have the legal authority to do so. Otherwise, the family must apply to the court for appointment of a guardian over the person or property, or both. Those who are old enough to remember the public guardianship proceedings for Groucho Marx recognize the need to avoid a guardianship proceeding if at all possible.

At a minimum, seniors need broad powers of attorney that will allow agents to handle all of their property upon disability, as well as the appointment of a decision-maker for health care decisions (the name of the legal document varies by state, but all accomplish the same thing). Alternatively, a fully funded revocable trust can ensure that the senior’s person and property will be cared for as desired, pursuant to the highest duty under the law – that of a trustee.

Conclusion

The above discussion outlines the minimum planning clients should consider in preparation for a possible disability. It is imperative that clients work with a team of professional advisors (legal, medical and financial) to ensure that, in light of their unique goals and objectives, their planning addresses all aspects of a potential disability.

On June 1, 2012, the Centers for Medicare & Medicaid Services issued Transmittal No. R2480CP , which took effect September 4, 2012.  The Transmittal updated instructions on the issuance of ABNs.  This transmittal clarifies the difference between a mandatory and voluntary ABN, brings the ABN process into compliance with the Affordable Care Act (ACA), creates a Quick Glance Guide and offers new hypothetical situations to illustrate the use of ABNs.

Highlights of the Transmittal are briefly covered below with language directly from the Transmittal in quotes:

Background

An Advance Beneficiary Notice of Noncoverage (ABN) provides notice to a Medicare beneficiary that an ordinarily covered Medicare item or service will not be covered.

Required Notice

If notice is not given in the form of an ABN, or as otherwise required, to the beneficiary, the provider/supplier may not shift liability to the beneficiary.

Skilled Nursing Facilities, Preventive Services and Hospice Care

The transmittal clarifies use of ABNs with Skilled Nursing Facilities (SNFs) and when form CMS-R-131 should be used.  It also addresses that Home Health Agencies use a separate form call a Home Health Advance Beneficiary Notice of Noncoverage (HHABN).  The transmittal discusses when hospice providers are required to issue an ABN.

The transmittal clarifies the mandatory use of ABNs for preventive services established by the ACA’s annual wellness visit and the preventive physical examination (the Welcome to Medicare physical) established by the Medicare Modernization Act.

Mandatory Use of ABNs

An ABN is mandatory in the following situations:  1) not reasonable and necessary; 2) violation of the prohibition on unsolicited telephone contacts; 3) medical equipment and supplies supplier number requirements not met; 4) medical equipment and/or supplies denied in advance; 5) custodial care; 6) hospice patient who is not terminally ill.

Expanded Mandatory Uses of ABNs

In addition to the previously detailed Mandatory ABNs, this transmittal added the following to the Mandatory ABN list:  1)   The item or service is furnished by a non contract supplier AND the item is included in the Durable Medical Equipment, Prosthetic, Orthotics and Supplies (DMEPOS) Competitive Bidding Program (CBP) for a Competitive Bidding Area (CBA) (unless the beneficiary has already signed an ABN); or 2) The preventive service frequency limitations have been exceeded.

Voluntary Use of the ABN

Where a Voluntary ABN is appropriate, it does not have to comply with the formal requirements of a mandatory ABN.  “The voluntary ABN serves as a courtesy to the beneficiary in forewarning him/her of impending financial obligation. When an ABN is used as a voluntary notice, the beneficiary should not be asked to choose an option box or sign the notice.”

Notifiers

“Regardless of who gives the notice, the billing entity will always be held responsible for effective delivery. When multiple entities are involved in rendering care, it is not necessary to give separate ABNs.”

Recipients of the ABN

The ABN must be issued prior to the item or service being provided.

Representatives of Beneficiaries

If the beneficiary has a known legal representative, notice must be given to the representative.  If no legal representative exists, but it is believed one is necessary, CMS may appoint one.

Reduction of benefits

“The ABN is not issued every time an item or service is reduced. But, if a reduction occurs and the beneficiary wants to receive care that is no longer considered medically reasonable and necessary, the ABN must be issued prior to delivery of this noncovered care.”

Termination of Benefits

“The ABN is only issued at termination if the beneficiary wants to continue receiving care that is no longer medically reasonable and necessary. “

Repetitive or Continuous Noncovered Care

Generally, an ABN is valid for one year.  The Transmittal provides new language with specific clarification regarding ongoing treatment and the issuance of the initial ABN and a renewal ABN.

Proper notice requires an up-to-date ABN

CMS makes it clear in this transmittal that the ABN used must be up-to-date or it is considered inadequate notice.

Beneficiaries responsible for usual fee if proper notice given

Where a beneficiary has been properly notified with an ABN, she may be held responsible at the rate of the providers/suppliers usual and customary fee for the items or services furnished.

Electronic Retention

Providers are permitted to retain electronic copies of signed ABNs.  In addition, providers may electronically provide beneficiaries with ABNs, but these are only valid if the beneficiary can clearly see the screen.  The provider/supplier must provide the beneficiary with a hard copy of the ABN after signed acknowledgement.

DMEPOS, Ambulance Services and CORFs

Mandatory use of ABNs with DMEPOS, ambulance services and CORFs are specifically addressed in the Transmittal.

Instructions for ABNs

ABNs are provided on the CMS website.  It is the provider/supplier’s responsibility to check the dates of the ABN and periodically check the CMS website for updates.  The notice requirements can be found at:  www.cms.gov/BNI/Downloads/ABNFormInstructions.zip.

To view the Transmittal in full, see the attached document.

For a summary of the transmittal provided by the Center of Medicare Advocacy, follow the link:  http://www.medicareadvocacy.org/2012/08/16/cms-clarifies-when-the-advance-beneficiary-notice-of-non-coverage-abn-must-be-issued/