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We all believe that we are entitled to Social Security benefits if we paid into the system, to VA benefits if we were in the military during wartime and to Medicare when we hit 65.

The law says so.

But what the law doesn’t say is that we will get them only if our applications are processed timely and correctly and if the system – including the ever-changing Medicare payment rules and quality measure incentives – works.

Cuts to Experienced Workers at the Social Security Administration

As a previous blog noted, in recent years the Social Security Administration has purposely cut the most experienced field office and phone center workers. Some of these cuts may be rationalized as elimination of positions no longer needed due to the improved website. But the website tends to answer the easier, more routine questions. Years of experience with applications and with the ever-changing Program Operations Manual (“POMS”) are needed to cut though some thickets. If disabled, you may need to hire a lawyer and fight for two years to get benefits. If retired, you may be mistakenly advised to take benefits which, in the long run, give you less and the government more. (See Laurence J. Kotlikoff’ and Philip Moeller’s Social Security: Get What’s Yours (New York: Simon & Schuster, 2016.))

Reviews of Veterans Administration Applications

The Veterans Administration can be at least as frustrating. Unlike Medicaid, VA application reviewers do not follow a strict set of rules. Responses vary from one office to another. Some of the proposed new regulations for Aid & Attendance were drafted without a view toward reality: to qualify, a veteran would not be allowed a homestead with more than two acres. Yet a very large number of veterans live in the country. One VA administrator actually told a member of the Special Needs Alliance that one of the purposes of the proposed rules is to make it harder to apply, and harder to use lawyers to appeal a denial. You may have fought for your country. But will your country fight for you?

Medicare Home Health Care

The Center for Medicare Advocacy reports,

“While Medicare home health coverage laws apply equally to all individuals, equitable application of coverage laws has been impeded by administrative payment rules and quality measure incentives that favor beneficiaries who have short-term care needs and disfavor those with long-term care needs.”1

How can this be? How can it be that the more you need Medicare home health care, the less likely you are to get it – and the more likely you are to be forced into a Medicaid nursing home?

“Home health care agencies can choose who to serve, and what to charge them, under the Medicare Conditions of Participation. CMS payment models and quality measure ratings incentivizing home health care are not even accounted for in CMS’ measurements.”2

As people in the nursing home industry are fond of saying, if you can measure it, you can move it. But if there is no measure, who even knows if it needs to be moved?

The newly proposed home health rules only exacerbate the problem.3

Write a letter. Let the rulemakers know what really works and what may actually be elder abuse.

1 and 2 Center for Medicare Advocacy, “The Home Health Care Crisis: an Elder Justice Issue,” August 2, 2017
3 42 Code of Federal Regulations Parts 409 and 482, volume 82, number 144, beginning at 35270



Estate Planning attorney, Terry Garrett, is a member of the National Academy of Elder Law Attorneys and is active in the Texas and Austin Bar Associations. She graduated with honors from Cornell University. She was on the Dean’s List at Wharton Business School. She earned her J.D. at Columbia Law School, receiving the Parker Award and a Mellon Fellowship.

She assists families of people with special needs, people planning for the retirement years and people administering estates.

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