April 01, 2013

Navigating the New World

Edward J. Schoenbaum

Once again I need to express my deep appreciation to Walter Burke, chair of the SLD Elder Law Committee, for stepping in this year to direct our four-part special series on elder law. This issue continues teaching all of us about important aspects of the changing landscape of health care today. I have learned more than I could have ever anticipated about health care for myself, my family and friends, and any clients I might one day serve by reading all the articles in the healthcare issues of our series (Parts I and II).

The authors in this issue have done a phenomenal job sharing their expertise in such a readable, understandable, and practical way. For example, in the article by Michael Abourezk and Alicia Garcia, “Long-Term Care Insurance: How to Recognize Improper Insurance Claim Denials,” they write: “Improper claim denials are so very common. The only thing that is not common is the lawyer who can recognize them and understand their real significance.”

“What Should Lawyers Know (and Do) to Help Clients with Healthcare Planning?,” by Barbara J. Daly, the Gertrude Perkins Oliva Professor of Oncology Nursing in the Francis Payne Bolton School of Nursing of Case Western Reserve University and the Clinical Ethics Program director at University Hospitals of Cleveland, adds immeasurably to the discussion on advance directives that was initiated last issue with Dr. Daniel Brauner’s article on “What Should Lawyers Know about Advance Directives for Health Care? A Geriatrician Speaks Out.” My law degree is from Case Western Reserve, and so I am particularly proud of the quality of that contribution.

Her point is that attorneys can and should encourage family members to discuss the most important aspects of life, “to explore with each other what makes life worth living, what adds value, and what would be seen as an unacceptable state.” It is very rarely that attorneys are called upon to facilitate such discussions, and so her point is well taken—and taken seriously, indeed.

John K. DiMugno gives an excellent explanation of the financial incentives inherent in Medicare Advantage plans, which receive a fixed fee per patient per month (capitation fees) and profits if a patient receives less care, in comparison with the concerns arising from the vulnerability of Medicare patients with high utilization of big-ticket medical services that lead to contested utilization review decisions more frequently than one finds with ERISA plans. Wes Hentges in his “Long-Term Care Insurance: Who, What, When, Where, and Why” reminds us that elder law attorneys know the costs of living a long life and urges us to plan accordingly!

Dennis J. Wall does a beautiful job in “Report from the ACA Battlefront: Medicaid, the ACA, and the Supreme Court,” giving us a comparison on what Medicaid was back in 1965 and what it is now by comparing three variables: funding, financial eligibility, and categories of eligible participants.

Others will introduce the other special articles in this issue, including those of our esteemed columnists, but I would like to thank one of those columnists, Charles Sabatino, for the commitment he and his staff at the ABA Commission on Law and Aging have shown to writing informative columns for Experience. How fortunate we are to have forged a partnership with them!

I hope that you all have the opportunity to read this issue, and the others in our elder law series, in depth. You will find yourself much more able to navigate the new world of health care.

Edward J. Schoenbaum

Edward J. Schoenbaum (judgeeds@gmail.com) is chair of the Senior Lawyers Division and active in many other ABA entities. Retired from his full-time administrative law judgeship, he currently works under contract as an arbitrator for the Illinois Workers’ Compensation Commission.