New Rules Make Preventative Care for Alzheimer’s, Diabetes More Accessible for Medicare Patients

Employee Benefits AlertNew rules for Medicare services are about to take effect that will give people greater access to preventative care. The Centers for Medicare & Medicaid (CMS) decided that, beginning January 1, 2017, Medicare will pay more for cognitive and behavioral assessments, diabetes prevention programs, and to patient-centered care for people living with multiple chronic conditions and cognitive impairment conditions, including Alzheimer’s disease.

CMS says the new payment rules are part of a push by the Administration to create a health-care system that emphasizes prevention and results in better care, smarter spending, and healthier people. The additional funding will go toward care coordination and patient-centered care, mental and behavioral health care, and cognitive impairment care assessment and planning.

Clinicians will also have the opportunity to be paid more for spending more time with patients. That extra time with physicians could be critically important for patients who have multiple chronic conditions, as older adults sometimes do.

For more information from CMS about the new rules, visit its website here and blog here.

Questions? Contact us to learn more.

Mysliwiec, Melisa

Fraser Trebilcock provides counsel on all matters relating to the legal planning for care and support of those needing Medicare and Medicaid. Attorney Melisa M. W. Mysliwiec focuses her work in the areas of Elder Law and Medicaid planning, estate planning, and trust and estate administration. She can be reached at or 616-301-0800. You can also click here to learn more about our Trusts & Estates practice.

Is Your Employer Group Health Plan Design Compliant with the Section 1557 Nondiscrimination Rules?

FB - FinalTreeAs an employer, you are likely subject to Title VII of the Civil Rights Act.  But did you know that your group health plan may also be subject to similar nondiscrimination rules?  Employers should carefully analyze whether and to what extent they must comply with Section 1557, which is the nondiscrimination section of the Affordable Care Act.  Similar to Title VII, it prohibits discrimination on the basis of race, color, national origin, sex, age, or disability; however, this law specifically regulates health programs and activities.

If you or your health plan are deemed a covered entity under Section 1557, you have some additional compliance measures to undertake, which include:

-Ensuring your group health plan offers compliant coverage (changes must be made by January 1, 2017)

-Posting appropriate notices within significant publications, on the premises, and on your website

-Ensuring proper grievance procedures are adopted and followed (if applicable)

Here are the questions you should be asking:

  • Does a covered entity exist?
  • If yes, will the employer be liable?
  • Does the employer’s group health plan offer compliant coverage?
  • Are the employer’s physical facilities compliant?
  • Are the proper notices included in significant publications and posted on the premises and websites?
  • Are the appropriate grievance procedures being followed?
  • If Section 1557 in not applicable, why should I care?

Covered Entities

While this is not a comprehensive review, please be aware that health programs or activities receiving federal funds must carefully scrutinize their responsibilities under Section 1557.  A “covered entity” is an entity that operates a health program or activity, any part of which receives Federal financial assistance.  The definitions of “health program or activity” and “federal financial assistance” are:

Health program or activity means the provision or administration of health related services, health-related insurance coverage, or other health related coverage, and the provision of assistance to individuals in obtaining health-related services or health-related insurance coverage. For an entity principally engaged in providing or administering health services or health insurance coverage or other health coverage, all of its operations are considered part of the health program or activity, except as specifically set forth otherwise in this part. Such entities include a hospital, health clinic, group health plan, health insurance issuer, physician’s practice, community health center, nursing facility, residential or community-based treatment facility, or other similar entity. A health program or activity also includes all of the operations of a State Medicaid program, a Children’s Health Insurance Program, and the Basic Health Program.”

Federal financial assistance. (1) Federal financial assistance means any grant, loan, credit, subsidy, contract (other than a procurement contract but including a contract of insurance), or any other arrangement by which the Federal government provides or otherwise makes available assistance in the form of: (i) Funds; (ii) Services of Federal personnel; or (iii) Real and personal property or any interest in or use of such property, including: (A) Transfers or leases of such property for less than fair market value or for reduced consideration; and (B) Proceeds from a subsequent transfer or lease of such property if the Federal share of its fair market value is not returned to the Federal government. (2) Federal financial assistance the Department provides or otherwise makes available includes Federal financial assistance that the Department plays a role in providing or administering, including all tax credits under Title I of the ACA, as well as payments, subsidies, or other funds extended by the Department to any entity providing health-related insurance coverage for payment to or on behalf of an individual obtaining health related insurance coverage from that entity or extended by the Department directly to such individual for payment to any entity providing health-related insurance coverage.”

If the employer operates a health program or activity and receives federal financial assistance, the employer must next determine if it can be held responsible for violations of Section 1557.

Employer Liability

Providing a health plan for employees and receiving federal financial assistance in some other capacity will not necessarily mean that the employer can be liable under Section 1557.  Instead, there are only three instances where employer liability is at issue for discrimination in employee health benefit programs.

A covered entity that provides an employee health benefit program to its employees and/or their dependents shall be liable for violations of this part in that employee health benefit program only when:

  • The entity is principally engaged in providing or administering health services, health insurance coverage, or other health coverage (such as hospitals, carriers, TPAs, etc);
  • The entity receives Federal financial assistance a primary objective of which is to fund the entity’s employee health benefit program (such as by receiving Retiree drug subsidies); or
  • The entity is not principally engaged in providing or administering health services, health insurance coverage, or other health coverage, but operates a health program or activity, which is not an employee health benefit program, that receives Federal financial assistance; except that the entity is liable under this part with regard to the provision or administration of employee health benefits only with respect to the employees in that health program or activity.

If the employer can be liable, it must ensure it offers compliant coverage, has disability accessible premises, posts the required notices, and follows grievance procedures (for employers with 15 or more employees).

Compliant Coverage, Notices & Grievance Procedures, and Physical Location Accessibility

If subject to Section 1557, the employer must ensure nondiscriminatory plan coverage is in effect by January 1, 2017.  Again, coverage cannot discriminate on the basis of race, color, national origin, sex, age, or disability; however, the law also specific requirements with regard to gender identity and transition exclusions and limitations.

Notices describing Section 1557 must be posted and must include taglines for at least the top 15 languages spoken in in the applicable state by individuals with limited English proficiency.

In a conspicuously-visible font size, the Notices must be posted:

  • In significant publications and significant communications targeted to beneficiaries, enrollees, applicants, and members of the public, (except for significant publications and significant communications that are small-sized, such as postcards and tri-fold brochures, which instead use a shorter notice with only 2 taglines);
  • In conspicuous physical locations where the entity interacts with the public (i.e., where other legal notices are posted for employees); and
  • In a conspicuous location on the covered entity’s Web site accessible from the home page of the covered entity’s Web site.

With respect to the Web site requirement, the Preamble provides the following additional information:

We stated that covered entities may satisfy the requirement to post the notice on the covered entity’s home page by including a link in a conspicuous location on the covered entity’s home page that immediately directs the individual to the content of the notice elsewhere on the Web site. Similarly, we stated with regard to the requirement to post taglines that covered entities can comply by posting ‘‘in language’’ Web links, which are links written in each of the 15 non-English languages posted conspicuously on the home page that direct the individual to the full text of the tagline indicating how the individual may obtain language assistance services. For instance, a tagline directing an individual to a Web site with the full text of a tagline written in Haitian Creole should appear as ‘‘Kreyo`l Ayisien’’ rather than ‘‘Haitian Creole.’’

Sample notices and procedures can be found within the regulations and on the government website:

For the final regulations click here:

The notices and translated taglines are here:

FAQs can be found here:

The following link provides information on taglines:

Finally, HHS has since listed the top 15 languages by state:

Additionally, Section 1557 requires that physical locations be disability compliant, and the employer must adopt grievance procedures to handle Section 1557 complaints consistently.

Nondiscrimination Compliance with Health Plan Coverage Even if Section 1557 if Inapplicable

Please note that even if an employer is not subject to Section 1557, the Office for Civil Rights of the Department of Health and Human Services (OFR) may refer a discriminatory design to the EEOC for investigation.  Please see the Preamble to the regulations at :

Where … the alleged discrimination relates to the benefit design of a self-insured plan—for example, where a plan excludes coverage for all health services related to gender transition—and where OCR has jurisdiction over a claim against an employer under Section 1557 because the employer falls under one of the categories in § 92.208, OCR will typically address the complaint against that employer.

As part of its enforcement authority, OCR may refer matters to other Federal agencies with jurisdiction over the entity. Where, for example, OCR lacks jurisdiction over an employer responsible for benefit design, OCR typically will refer or transfer the matter to the EEOC and allow that agency to address the matter.

Therefore, careful attention to Section 1557’s requirements is important for plan design regardless of direct employer liability under the law.

This correspondence is intended to provide general information only, does not constitute legal advice, and cannot be used or substituted for legal or tax advice.

Questions? Contact us to learn more.

Why Your Caretaker Agreement Should Be Medicaid-Compliant, Even If You’re Not on Medicaid

Trusts & Estates - Fraser TrebilcockUnder current Medicaid policy, what you don’t know about care contracts might actually hurt you.  The definition of what is considered a care contract under Medicaid policy is broad.  Currently, any arrangement under which an individual is paying for health care monitoring, medical treatment, securing hospitalization, visitation, entertainment, shopping, home help or other assistance with activities of daily living is considered a personal care contract.  Further, any arrangement which pays for expenses such as home/cottage/car repairs, property maintenance, property taxes, homeowner’s insurance, heat and utilities for the homestead or other real property of the client’s is considered a home care contract.  These are the types of things that allow individuals to age in place and remain in their homes as long as possible, as opposed to entering a nursing home.

The reason Medicaid’s care contract policy will harm those who don’t know about it is all payments made to caregivers for any of these types of services within 5 years of applying for Medicaid benefits will be considered a divestment for purposes of Medicaid eligibility unless a Medicaid-compliant caregiver contract was in place.  Divestments are defined as transfers for less than fair market value.  Divestments result in a penalty period during which Medicaid will not pay for an individual’s costs for long-term care services, home and community-based services, home help, and home health.

Most people do not anticipate entering a nursing home or needing long-term care Medicaid benefits.  Even so, they are expected to know when and if this will occur, and they need to know at least 5 years in advance so that they can take the necessary precautions with respect to personal care and home care contracts, or face penalty.  No one has a crystal ball that views 5 years out; therefore, the best practice is to establish Medicaid-compliant caretaker contracts for all personal care and home care contracts to ensure no penalty is assessed in the event that long-term care Medicaid is needed in the future.

Additionally, this policy applies equally to arrangements with both relatives (anyone related by blood, marriage or adoption) and non-relatives (including third-party commercial providers).

For a personal or home care agreement to be considered Medicaid-compliant (i.e. not be considered a transfer for less than fair market value [i.e. divestment] for purposes of Medicaid), each of the following must be met:

  1. The services must only be performed after a written legal contract/agreement has been executed between the client and provider.
  2. The contract/agreement must be dated, notarized, and signed by the provider and the client, either individually or by the client’s agent under a power of attorney, guardian, or conservator, provided that the person signing for the client is not the provider or the beneficiary of services.
  3. No services may be paid for until the services have been provided (there cannot be prospective payment for future expenses or services).
  4. At the time that services are received, the client cannot be residing in a nursing facility, adult foster care home (license or unlicensed), institution for mental diseases, inpatient hospital, or intermediate care facility for individuals with intellectual disabilities.
  5. At the time that services are received, the client cannot be eligible for home and community based wavier, home health, or home help.
  6. The contract/agreement must show the type, frequency and duration of such services being provided to the client and the amount of compensation being paid to the provider.
  7. Payment for companionship services is prohibited.
  8. At the time services are received, the services must have been recommended in writing and signed by the client’s physician as necessary to prevent the transfer of the client to a residential care or nursing facility.

Note, also, that there is a presumption that relatives who provide home and personal care services do so for love and affection only.  Payment for home and personal care services to relatives creates a rebuttable presumption that the payment was a transfer for less than fair market value (i.e. a divestment).  Therefore, even if a Medicaid-compliant caregiver contract is in place for services provided by a relative, if and when Medicaid is applied for, the Department of Health and Human Services will determine fair market value for such services by comparing the contract price to other area businesses which provide such services.  If the relative’s rate was greater, it will very likely be considered a divestment.  For this reason, it would be wise to compare a relative caretaker’s cost of services to other providers in the area in advance to be sure the rate is similar.  Additionally, it is recommended that the documentation gathered is retained in case fair market value is contested in the future.

Questions? Contact us to learn more.

Mysliwiec, Melisa

Fraser Trebilcock provides counsel on all matters relating to the legal planning for care and support of those needing Medicare and Medicaid. Attorney Melisa M. W. Mysliwiec focuses her work in the areas of Elder Law and Medicaid planning, estate planning, and trust and estate administration. She can be reached at or 616-301-0800. You can also click here to learn more about our Trusts & Estates practice.


US EPA Approves and Disapproves of Michigan’s Changes to the Inland Lakes & Streams and Wetland Protection Acts

EPAOn July 2, 2013, the Governor signed into law 2013 Public Act 98 which made some very significant changes to Michigan’s Inland Lakes & Streams and Wetlands Protection Acts which are known as “part 301” and “part 303,” respectively, of Michigan’s Natural Resources and Environmental Protection Act. The federal Clean Water Act required the United States Environmental Protection Agency (“USEPA”) to approve or disapprove those changes in the law. According to the Michigan Department of Environmental Quality, the failure of Michigan to make legislative changes to comply with the federal Clean Water Act would have resulted in the USEPA’s termination of Michigan’s authority to regulate wetlands which are subject to the federal law.

On July 5, 2013, the State of Michigan requested the USEPA to approve 2013 Public Act 98. On December 11, 2013, the USEPA conducted a public hearing in Lansing and received more than 200 comments about this Act at that hearing. The USEPA also received many written comments about this legislation.

On December 13, 2016, three years after it held the public hearing, the USEPA released the results of its review of this public act. It approved some of the changes and disapproved others. The USEPA’s publication of its findings did not say whether it was going to withdraw or not withdraw Michigan’s authority to regulate federally protected wetlands. Odds are it will not do so.

The USEPA approved the legislation which exempted one from the need to obtain a permit to maintain an agricultural drain as long as that maintenance did not change the drain’s location, depth and bottom width as of July 1, 2014 and as long as that work was done either by the landowner or pursuant to Michigan’s drain code of 1956. The USEPA also approved the legislation which describes and defines the “best management practices” for drain maintenance. However, the USEPA disapproved the legislation which would have allowed a landowner to replace a culvert without a permit from the MDEQ.

The USEPA disapproved the exemption from the permit requirement for provided controlled access for livestock crossing. It also approved the new definition of an agricultural drain which is a human-made conveyance of water that does not have continuous flow, flows primarily as a result of precipitation induced runoff, serves agricultural production and was constructed either before January 1, 1073 or was built in compliance with Michigan’s wetland protection act.

The USEPA disapproved of the Michigan law which would have allowed a landowner to construct a water treatment pond or storm water detention facility, construct a new drain in upland property to remove excess soil from agricultural lands, and engage in an agricultural soil and water conservation practice to enhance water quality without obtaining a permit from the MDEQ. The USEPA also disapproved of the law’s provision that an area which becomes contiguous to a water body created by commercial excavation for sand, gravel or mining activities is not subject to regulation under the amended Act.

The USEPA also disapproved of the Act’s definition of whether a wetland is “continuous” to the Great Lakes or an inland lake, river or stream; it also disapproved the Act’s statement that the MDEQ shall not consider an agricultural drain in determining whether a wetland is continuous to such a body of water. The USEPA disapproved of the Act’s provision that a drainage structure such as a culvert, ditch or channel is not a wetland.

The USEPA also approved some changes in the law which impose new requirements for blueberry farmers and approved most of the Act’s technical changes to the permitting process such as those pertaining the fees which the MDEQ can charge and the time the MDEQ should take to issue a permit.

It remains to be seen how Michigan’s Legislature, the MDEQ, the agricultural community and persons commonly described as “environmental activists” will respond to the USEPA’s approvals and disapprovals of parts of Michigan’s 2013 changes to the Inland Lakes & Streams and Wetland Protection Acts. Stay tuned.

Additional Resources:

Click HERE for a complete look at the USEPA’s decision for each PA 98 revision, as well as supporting documents and additional information provided by the government.

Click HERE for a look back at history of this legislation and the process which culminated in the passage of 2013 Public Act 98.

Questions? Contact us to learn more.

perry-everett-web-blogAttorney Michael H. Perry is a shareholder and previous President of Fraser Trebilcock with over 35 years of environmental and litigation experience. You can contact Mike at or 517.377.08846.

Scott D. Everett is the Director of Legislative Affairs for Fraser Consulting, a subsidiary of Fraser Trebilcock law firm that provides full-service lobbying assistance. You can reach Scott at or 517.377.0839.

Free Program: Legal and Financial Planning for Alzheimer’s Disease

The diagnosis of Alzheimer’s disease makes planning for the future more important than ever. There are programs available that can help offset costs for families, but it’s crucial to have accurate information about legal and financial planning before making any major decisions.

Legal and Financial Planning for Alzheimer’s Disease is an interactive workshop where you will have a chance to learn about important legal and financial issues to consider, how to put plans in place, and how to access legal and financial resources near you. If you or someone you know is affected by Alzheimer’s disease or dementia, we invite you to join us at MSUFCU’s Farm Lane Branch for a free presentation with the Alzheimer’s Association.

Tuesday, December 13, 2016
MSUFCU Farm Lane Branch
4825 E. Mt. Hope Road
East Lansing, MI 48823
6:00 p.m. – 7:00 p.m.


Topics covered will include:

  • Making legal plans that fit your needs
  • Legal documents you’ll need and what they mean for all of you
  • How to find legal and financial assistance
  • Practical strategies for making a long-term plan of care
  • Tax deductions and credits
  • Government programs that can help pay for care

stethoscope heart

Attorneys Paula J. Manderfield and Melisa M. W. Mysliwiec will present the workshop along with Fraser Trebilcock Marketing Director and current Alzheimer’s Association board member Julie Holton. Fraser Trebilcock is proud to present “Legal and Financial Planning for Alzheimer’s Disease” along with the Alzheimer’s Association. If you would like more information, go to or email