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Long Term Care Initiatives in Obamacare – Keystone Elder Law – Mechanicsburg, PA

I am frequently asked whether the Affordable Care Act of 2010, which most of us know as Obamacare, has changed the way that long-term care services are offered or funded.  The simple answer is “not really.” However, that answer should be understood in the context of the national failure of one initiative, and a delayed start in Pennsylvania of another.

A significant component of Obamacare was the Community Living Assistance Services and Supports Act (CLASS Act).  This would have made long-term care insurance available similarly to the way that health insurance is now offered by Obamacare, except that the long-term care insurance would have been optional.  Since the CLASS Act is not the main topic of this article, suffice to say that a bipartisan conclusion that the CLASS Act was not economically viable led to it to being removed legislatively from Obamacare.  Now, the federal government has no answer for funding  to pay for the long-term care needs of an American citizen after Medicare stops paying at the maximum of 100 days of service, other than the means-tested Medicaid program and a limited pension for war-time veterans.

Obamacare did introduce another initiative to address long term care.  The Balancing Incentive Program, created by Section 10202 of Obamacare, provided $3 billion in funding to be used before September 2015 to help states to develop their system of long-term care services delivery.  Pennsylvania currently is not participating.

Seventeen states, including neighboring Ohio, Maryland, New York and New Jersey, have been approved to participate and receive funding.  As of January 2014, $2.1 billion of the $3 billion has been committed. The Balancing Incentive Program objectives include lofty phrases such as:  lowering costs; improved systems performance and efficiency; creating tools to help consumers with care planning and assessment; and improving quality measurement and oversight.

Another objective of the Balancing Incentive Program is to encourage states to make structural reforms to increase options for using Medicaid to provide for care outside of nursing homes.    After many dozens of presentations to more than a thousand people, I have yet to have a single person indicate their personal goal or expectation is to be in a nursing home at the end of their life.  Yet, statistically, if a person reaches age 65, there is a 43% chance of being admitted to a nursing facility. 

The AARP Public Policy Institute published a report, “The Aging of the Baby Boom and the Growing Care Gap,”  which says that “between 2010-2030, the age 80-plus demographic is expected to swell by 79%.”   Consider this trend with the report’s finding that, “in 2010, 70.5% of those age 80-plus had some disability, 55.8% had a severe disability and 30.2% needed help with daily living tasks, including bathing, dressing, toileting, preparing meals, using the telephone and paying bills.”  Clearly, nursing homes are essential, but supply and demand issues caused by a probable shortage on nursing home beds will necessitate safe and affordable options for care in home-based settings.  

To participate in the Balancing Incentive Program, a state must have spent less than 50% of its total Medicaid expenditures on non-institutionally based long term support services for fiscal year 2009. Pennsylvania is one of 37 states which meet this requirement.  So why is Pennsylvania on the outside looking in as one of one of the twenty states which has not yet accepted the challenge to compete for the $3 billion incentive to improve the delivery of our long term care services?

Eric Kiehl, a Carlisle area resident who is the Director of Communications for the Department of Public Welfare, answered that question:     “To date, Pennsylvania has taken a cautious approach to all Affordable Care Act initiatives, assessing whether they will be sustainable once increased federal funds are no longer available.  We recently completed an analysis of the Balancing Incentive Program and feel comfortable that meeting the terms of the initiative will not place a burden on the Commonwealth, and it is financially and programmatically beneficial to participate in this program.  We announced our intention to participate in the Balancing Incentive Program as part of the Governor’s proposed FY 2014-2015 budget.   Once approved, the Department will use these funds to expand the number of individuals receiving home and community- based (waiver) services for persons with intellectual disabilities, adults with physical disabilities and older Pennsylvanians. ”  

Despite years of experience, I continue to observe that our long-term care system is either broken or has not yet been fully invented.  Caregivers for chronically ill or aging persons usually retain services in piecemeal from a variety of medical and nonmedical providers.  One of the initiatives of the Balancing Incentive Programs is a “no wrong door” enrollment policy that would enable people seeking help from the government to complete one application to determine which long term services programs their family might be eligible to receive.

It is a challenge to manage care priorities, caregiving  schedules,  requirements for government-funded services , and family budget limitations.  As a public service, Keystone Elder Law has compiled a Directory of Services for South Central PA Senior Adults and Caregivers, which can be obtained for free in the resource section of our webpage. (  Having access to our Directory of Services is helpful, but a need for guidance remains. 

Will Obamacare’s Balancing Incentive Program trigger the systemic change that is obviously needed?  Optimists can hope that, even if Pennsylvania’s participation would be a year later than that of neighboring states, important changes will be implemented.  In the wake of the troublesome  website issues with the roll-out of the Obamacare healthcare exchange, pessimists might question whether  either the federal or state government can be counted on to offer adequate resources or direction for the long-term care needs of our aging population. 

By Dave Nesbit, Attorney
Keystone Elder Law