Q&A with Charles Sabatino

Charles Sabatino

Elder law expert Charles Sabatino, director of the ABA's Commission on Law & Aging, talks about how the commission is helping lawyers help seniors deal with Medicare Part D, other elder law issues, and the anniversary of the Terry Schiavo case.

With the enrollment deadline for Medicare Part D fast approaching, what are lawyers doing to help the hundreds of thousands of elderly who are still trying to decide which plan to select?

The enrollment deadline for the new Medicare prescription drug benefit is May 15, yet millions of Medicare beneficiaries have not yet signed up for a plan, in part because of the daunting complexity of the benefit and options. Because of the complexity, elders and their families are increasingly turning to professionals for help. We know that the publicly funded health insurance assistance projects (called SHIP programs) that exist in every state have been inundated with calls for help. And we know that lawyers who specialize in elder law (and many who don't) are fielding a surge of requests for advice.

In an effort to address the need, the ABA's Commission on Law and Aging organized a CLE teleconference on March 2 titled, "The Medicare Part D Prescription Drug Benefit: A Crash Course for Practitioners." Several ABA and outside groups co-sponsored the event. The unique feature of this course was that tuition was waived for any private lawyer who made a commitment to offer pro bono support to a local SHIP or similar program. For those who missed it, the program will soon be available on "CLE NOW," the ABA's online location for complimentary CLE programs.

What resources do you recommend for lawyers who are trying to help - either as professionals or as sons or daughters, grandchildren or friends of those making the choice?

First of all, I would recommend that lawyers take advantage of the crash course described above as soon as it becomes available on the ABA CLE Web site. There are also a growing number of written and web-based materials available. The Medicare Web page has a great deal of information and tools on the new benefit, including the on-line Prescription Drug Plan Finder, which is a necessity to use to compare plans available in your area. A very good starting point in understanding the benefit is the publication by MAP Rx, titled Medicare Compare: Evaluating Your Medicare Prescription Drug Plan [PDF]. Also take a look at the excellent materials provided online by the Medicare Advocacy Project and the Health Assistance Partnerships.

Seniors who suffer from dementia or are otherwise limited in their ability to make the choice present a special challenge. Can you speak to that?

The ABA commission is working with a group of beneficiary advocates to resolve issues of enrollment for individuals with cognitive impairments. Who has authority to enroll an individual with diminished capacity? Federal regulations defer to state law, but the law in many states is unclear. In some states, the answer depends on whether you characterize enrollment as a health care decision or as a financial decision. Members of the working group have suggested revisions in Centers for Medicare and Medicaid Services' guidance that would better enable surrogates to help seniors with dementia and other cognitive impairments to enroll.

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Many of us are not only concerned about the Medicare part D plan that our parents are selecting, but also are thinking about nursing homes and other possibilities of care for our aging parents. How can we be sure that we are doing the best for our parents, both from our role as children and as lawyers?

Long-term care is the big hole in the health care system for seniors and individuals with disability. The federal Medicare program works fairly well for treating acute diseases, but most elders today live for years with multiple serious and eventually fatal conditions. The kind of care they need most in late life is hands-on assistance with daily living; relief of pain and other symptoms; a safe and functional environment, preferably in the home; planning for future expected needs; and continuity of services and providers. For all these goals, elders and their families more often than not find themselves on their own with no reliable care system readily available. The final recourse is often nursing home care, which at over $60,000 a year on average for a semi-private room, quickly impoverishes most families.

Reverse mortgages are gaining in popularity - or at least have gotten a lot of attention in the past few years. What should someone think about when deciding whether to take out a reverse mortgage?

A reverse mortgage lets older homeowners (usually 62 or older) borrow against the equity in their homes, without having to repay the loan right away. Payouts can be made in a lump sum, monthly cash payments for life, or by establishing a line of credit available as needed. These loans can be quite helpful in meeting identifiable and manageable financial goals, although they will be more expensive than conventional home equity loans and they cannot by themselves solve the financial challenge of paying for long-term care.

When the borrower finally sells the home or moves, she must repay the money borrowed plus the accrued interest and fees. But the lender is not permitted to collect more than the appraised value of the house at the time the loan is repaid, even if the loan exceeds that amount.

The most widely available product is the federally insured Home Equity Conversion Mortgage (or HECM). Under this program, the Federal Housing Authority provides insurance for reverse mortgages placed through private financial institutions. Another reverse mortgage program available nationally through private lenders is Home Keeper Mortgage, backed by Fannie Mae. Over the years, a few private companies have offered their own reverse mortgage products, but these have been more costly and riskier, and are better avoided, if possible.

A great resource on reverse mortgages is the guide Home Made Money; A Consumer's Guide to Reverse Mortgages.

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The one-year anniversary of the Terry Schiavo case is before us. What steps should people take with respect to health care decision-making?

A fundamental lesson of the Terry Schiavo case was that if you do not want others fighting over health care decisions if you become unable to speak for yourself, then it is essential to plan in advance. The most important task is to name a health care proxy or agent using a health care power of attorney or equivalent tool in your state. Guidance for your agent in how you want health decisions made is also important, but can be made either in the legal document, in other writings or by any other form of communication. The most important task is real communication.

The Commission on Law and Aging publishes a useful tool for lawyers to enable them to give clients the guidance they need to think through and discuss with family their values and preferences about health care decisions: The Lawyer's Tool Kit for Health Care Advance Planning can be ordered from the ABA's Web Store, here. The Commission is also working with the Maryland Attorney General on a free guide for health care proxies. The guide is scheduled for release as an online publication of the Attorney General on March 31, 2006, the Schiavo anniversary.

As they age, Baby Boomers will require many services from lawyers. Can you offer tips for those who want to set up an elder law practice?

A strong elder law practice requires development of special skills and resources in three areas that go beyond a typical law practice. First is in the special scope of legal issues that characterize a law and aging practice. I would describe elder law as a kind of expanded estate practice, with special knowledge in the law of Medicare and Medicaid (especially the components of Medicaid that provide benefits for long-term care), plus nursing home resident rights, disability planning issues, guardianship and protective services, elderly housing, special needs trusts and the special ethical issues that arise in serving elders.

Second, expertise needs to be developed in understanding the physical and psycho-social aging process, and the accommodations and skills needed to accommodate differing levels of sensory, physical and cognitive impairment needs of disabled clients. Some elder law lawyers even incorporate social work or geriatric care manager services into their practices.

Third, an elder law practice requires knowledge of and connections to a range of multi-disciplinary resources and collaborators who can help meet a seamless variety of needs of elders that extend well beyond the purely legal. It is not unusual to hear of clients who are most grateful to their lawyer for the referral to a geriatric assessment team that finally identified the real problem causing mom's functional difficulty, or for the referral to high quality home and community-based resources that they didn't know existed. The lawyer's extensive understanding of the local "aging network" often puts the lawyer at the fulcrum of the client's planning process. Elder law is often accurately described as a holistic practice of law.

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