Legslative Updates
The Challenge for States: Realizing the ACA's Promise for Low-Income Medicare Consumers
The Affordable Care Act expands Medicaid eligibility and creates a new eligibility standard, requiring states to use “modified adjusted gross income” (MAGI) to create seamless health coverage. But Medicare consumers, or “non-MAGIs,” are not included in the new MAGI standard and thus may not be included in new systems (e.g., exchanges) and in associated eligibility rules developed for non-Medicare consumers between now and 2014. Thus the ACA creates two classes of people eligible for Medicaid and threatens to leave the Medicare population behind as reforms for MAGIs and other uninsured Americans are developed in the coming years. States must ensure that non-MAGIs are included, to the maximum extent possible, in new Medicaid- and exchange-related systems and associated rules.
The Affordable Care Act’s (ACA’s) sweeping legislation expands Medicaid eligibility to many pre-65 individuals with incomes up to 133 percent of the federal poverty level (FPL) and creates a new standard for determining Medicaid eligibility, requiring states to use “modified adjusted gross income” (MAGI) and eliminating the asset test (see SSA 1902(a)(10)((A)(i)(VIII) and SSA 1902(e)(14)). But the ACA explicitly excludes from the MAGI standard the Medicare population: people age 65 and over and people with disabilities under 65 with Medicare; this population includes individuals for whom Medicaid is paying Medicare cost-sharing amounts (i.e., those who are dually eligible for Medicare and Medicaid and, in many cases, enrolled in Medicare Savings Programs, or MSPs). Medicare consumers are now being referred to as “non-MAGIs.”
In effect, the MAGI standard of the ACA creates two classes of people eligible for Medicaid: the MAGIs and nearly 9 million dually eligible non-MAGIs. While this inequity could be remedied by amending the ACA to align non-MAGI eligibility with MAGI standards, the federal legislative and fiscal hurdles to this solution are seemingly insurmountable in the foreseeable future. Nonetheless, routes exist for states to include low-income people with Medicare in exchanges and associated rules, enabling them to benefit from the new systems that will screen, determine, enroll, re-certify, and manage the insurance of millions of newly insured pre-65, non-disabled Americans. (For instance, while the ACA dictates that states must establish online application and re-certification processes for the MAGIs, states could make these processes available to non-MAGIs. Similarly, states may be able to reform non-MAGI eligibility budgeting to match or more closely parallel MAGI budgeting.)
To better understand how low-income Medicare consumers could be left behind as once-in-a-generation health reforms unfold, consider the case of Mr. R, who represents a consumer navigating health coverage systems if states do not extend ACA reforms to non-MAGIs:
In 2014, Mr. R is 58 years old and earning a living wage as a laborer in Rock Island County, Ill. That year, he goes online to the Illinois Health Insurance Exchange mandated by the ACA and enrolls in subsidized health coverage because he is at 170 percent FPL. Shortly after Mr. R’s 60th birthday, he suffers a stroke, becomes disabled, and qualifies for Social Security Disability Insurance. His loss of income, which places him at 132 percent FPL, also qualifies him under the MAGI standard for Medicaid. Following a two-year waiting period for Medicare, Mr. R becomes Medicare-eligible when he is 62 years old. He is now a non-MAGI — and no longer eligible for Medicaid because the upper income level for a non-MAGI is 100 percent FPL. Mr. R, now struggling to pay for needed health care, may be eligible for the MSP known as QI but needs budgeting and income disregard advice. There is no system in place to notify Mr. R of this potential eligibility, provide him with counseling, or automatically enroll him in the QI program, because he cannot access the services of the Illinois Exchange. Instead, he must contact another state agency and re-submit paperwork to qualify as a first-time applicant to QI even though he recently had been eligible for full Medicaid.
To protect Mr. R and the thousands of vulnerable Americans like him, states must include non-MAGIs in their exchanges and any improved enrollment systems in order to provide this population with seamless coverage. Further, states will also need to review their Medicaid budgeting rules to comply with the MAGI standard. During this review, states will have the opportunity to modify budgeting rules for the non-MAGIs, thereby achieving greater eligibility parity between MAGIs and non-MAGIs.
Joe Baker
President
Medicare Rights Center
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Comprehensive End of Life Counseling:
Time for a Uniform Law Governing Comprehensive
End of Life Counseling
Compassion & Choices, the nation’s largest and oldest organization advocating on behalf of terminally ill persons, has submitted a proposal to the Uniform Law Commission (ULC) urging it adopt a uniform law directing health care providers to offer terminally ill patients counseling on all end-of-life care options legally available in the forum state. Such a law is necessary to respond to the failure of many physicians to discuss end-of-life care issues with their patients, and to ensure that terminally ill patients are fully informed about their treatment choices.
Studies have confirmed that:
(i) these conversations between health care providers and their patients often do not take place; and
(ii) when these conversations do occur, they result in significant benefits for the patient and the patient’s caregivers.
It is well established that competent people, including the terminally ill, have a right to direct their medical care. A patient has the right to refuse or direct withdrawal of life-sustaining treatment, even if it will precipitate death. A patient may also choose aggressive disease-focused treatment, palliative care or some combination of both.
Yet, despite the breadth of choices available to patients at the end of life, terminally ill patients are often uninformed – and, indeed, misinformed – about their choices. Conversations between patients and their physicians about end-of-life care do not regularly occur. Indeed, even when such conversations do take place, they may be too late to implement patients’ preferences.
Because doctors and terminally ill patients are not speaking candidly about patients’ values and preferences concerning end-of-life care, patients and their caretakers are deprived of the “cascading benefits” that may result from such conversations. As a recent study, reported in the Annals of Internal Medicine, explained, “patients who reported having end-of-life discussions received less aggressive medical care and were more likely to receive hospice services for more than a week. Less aggressive care and earlier hospice referrals were associated with better patient quality of life near death. . . . Better patient quality of life near death, in turn, was associated with better quality of life among surviving caregivers . . . .” Public education is not enough to inform terminally ill patients adequately. Instead, comprehensive counseling about end of life care options should occur within the context of the doctor-patient relationship. Foremost, this is because health-care providers are the ones primarily tasked with carrying out a patient’s wishes at the end of life. Moreover, within this relationship, such counseling can occur iteratively and informatively, based on a patient’s condition, history, and other characteristics.
California and New York have taken the lead to correct this pressing problem, enacting laws designed to promote the flow of critically important information about end-of-life care options to terminally ill patients.
California’s Right to Know End-of-Life Options Act provides in pertinent part: “When a health care provider makes a diagnosis that a patient has a terminal illness, the health care provider shall, upon the patient’s request, provide the patient with comprehensive information and counseling regarding legal end-of-life care options pursuant to this section.” Cal. Health & Safety Code § 442.5.
New York’s Palliative Care Information Act (PCIA) provides a similar guarantee for terminally ill patients. The substantive difference between these two statutes is that in California, the patient must request counseling, while in New York the health-care provider must offer it (which a patient could, of course, refuse). Because patients may not know to ask for counseling, the New York measure is an improvement over the California law. It represents a logical extension of existing patient rights to receive information about diagnosis, prognosis, and treatment options while retaining flexibility for health care providers to exercise their professional judgment in a number of ways.
The New York PCIA was touted as “landmark legislation and a model for the nation” in APHA’s Aging & Public Health Section newsletter. In the proposal to the ULC, Compassion & Choices cited the APHA Section’s newsletter piece as evidence for the need to adopt model legislation.
APHA’s Policy on Patients’ Rights to Self-Determination at the End of Life, addresses the need for comprehensive counseling in this portion of the Policy:
“Need for Provision of a Full Range of Information
“Empirical and anecdotal evidence reflect that health care providers do not inform terminally ill patients of all options legal in the state in which the patient is receiving care. As a result, patients are not able to make fully informed decisions about care at the end of life.”
Accordingly, the APHA: “Supports the provision of information about the full range of end-of-life care options to terminally ill patients permitted by law in the state in which the patient is receiving care.”
Compassion & Choices supports a uniform law modeled after New York’s Palliative Care Information Act, which requires physicians to broach the subject of end-of-life care with terminally ill patients, initiating conversations that will ultimately improve patients’ quality of life near death by informing them of options and allowing them to make fully informed decisions.
Kathryn L. Tucker, JD
Director of Legal Affairs
Compassion & Choices
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Advance Care Planning in CMS Rules Gets Killed by Obama Administration
Much to the surprise and chagrin of many health care professionals, the Obama administration killed the part of final physician payment rules issued in November 2010 by the Centers for Medicare and Medicaid Services that for the first time would have required physicians to offer voluntary advance care planning information to their patients as part of the annual wellness visit under the Medicare program. The final regulation became effective Jan. 1, 2011. While the scope of the applicable provision was very narrow, it opened the door for a long-overdue integration of advance care planning processes into mainstream physician practice for physicians participating in the Medicare program. There is strong research evidence supporting early conversations between physicians and their patients about goals of care and the positive outcomes of such conversations. A paradigm shift that is occurring in health care away from formalistic types of decisions to relational, process – oriented communication is consistent with such early conversations. The Medicare Payment Advisory Commission Report of June 2010 described Medicare beneficiaries as, on average, more likely to be poorer, less educated, less health literate and more chronically ill than other medical consumers (Medicare Payment Advisory Commission Report, 2010). For these reasons among others, generally, Medicare beneficiaries are at higher risk of making decisions that are not informed by evidence. The deferral of physician payment for advance care planning conversations runs counter to all of the goals of health care reform supported by the Obama administration – improving health literacy, giving incentives for shared medical decision making, supporting quality improvement in the Medicare Program, achieving efficiency in the health care systems, and, most importantly, strengthening communication between physicians and the vulnerable frail elderly persons whom they serve in the Medicare Program. All of these goals have strong ethical underpinnings. It will be important for health care professionals across disciplines to continue to educate physicians, older adults and their family members about the complexities of health care decision making and the role of early advance care planning conversations in good decision making.
Mary Beth Morrissey, Esq, MPH
Fordham Ravazzin Center on Aging