On July 1, 2019, I did something I never thought I would do: I became “of counsel” to my firm.

During most of my career as an elder law attorney, I planned to keep working until I died. I remember mentioning this to a colleague, Robert Fleming, when I was at his office in Tucson in 1996. Robert, Charlie Sabatino, Craig Gordon, and I – all National Academy of Elder Law Attorneys (NAELA) members – were at Robert’s office grading CELA exams. We were talking about our practices. I mentioned that I never intended to retire.

Robert replied, “You don’t want to be like those old fuddy-duddies you see in courthouses, fumbling through their papers, with the staff feeling sorry for them and helping them file their paperwork.”

I never got to that point.

Change of Plans

I had a heart attack in March 2013, and now have three stents. I was blessed with a superb, competent, youthful staff to carry on my practice. I used to joke that if you added the ages of my law partner and associate together, they would still be younger than I was!

In addition, I had new interests, including travel, especially to London. After 30 years of practicing elder law throughout northern Wisconsin and Upper Michigan, I decided to call it quits.

I still see a few clients, including several close family friends for whom I serve as successor trustee/financial power of attorney. Mostly, though, my present professional life involves giving public presentations.

I have been a regular guest on the local PBS station, WNMU channel 13, in Marquette, Michigan, since 1998. I host the station’s All Elder Law call-in program, “Ask the Lawyers.” I am also a frequent guest on WNMU’s “Media Meet.”

I enjoy media appearances immensely. Before each one, I remember my high school speech teacher, Miss Helen Weiser, who recognized my talent for public speaking and encouraged me to realize my potential.

In my presentations I discuss Medicare, Medicaid, and the Affordable Health Care Act.

When You’re Retired It’s Easy to Keep Up with Elder Law Issues: The Details

I keep up with elder law issues, especially Medicare, from my personal experience.

I turned 65 and was eligible for Medicare in May 2013. As an elder law attorney, I was familiar with the Medicare program. I was recovering from my heart attack and decided to purchase my supplemental health insurance and Part D policy through AARP.

AARP was started in 1958 by Ethel Percy Andrus, a retired California teacher, before Medicare began. I regarded AARP as the gold standard for health insurance for us seniors. I signed up with AARP (United Health Care) for both a Medicare supplement policy, and a Part D drug plan.

I could have considered purchasing Medicare Advantage instead of traditional Medicare insurance. Medicare Advantage plans generally have much lower premiums than traditional Medicare plans. Increasingly they offer additional benefits, such as dental and vision care. They are heavily marketed.

I had philosophical objections to buying Medicare Advantage, because Congress has been favoring Medicare Advantage over traditional Medicare, including paying these plans more than traditional Medicare. These “overpayments” by Medicare were to be cut under the Affordable Care Act.

Most Medicare Advantage Plans use the Health Maintenance Organization (HMO) model. I didn’t want to worry, following my heart attack, about whether my insurance would cover me if I were “out of network” for some services and not for others.

As for Part D, I purchased what was known as a “preferred” plan. A preferred plan has no annual Part D deductible. My plan did not provide coverage during the so called “doughnut hole,” during which I have to pay the full cost for my prescription drugs. I knew, though, the Affordable Care Act was supposed to close this gap by 2020.

Before my heart attack, I had thought about signing up for Senior Care as an alternative to the Part D drug plan. My deductible would be too high for me to use Senior Care, but if I were taking few or no medications, its 12-month premium of $30 would be a lot less than the monthly premium for a preferred Part D plan.

The Centers for Medicare and Medicaid Services (CMS) has deemed Senior Care to be “creditable” prescription drug coverage. Thus if I were to need prescription drugs, I could enroll in a Part D plan without being penalized for failure to sign up for one when I first became eligible to do so.

I have been with AARP (United Health Care) since I first became Medicare-eligible. This is the first year my drug costs have caused me to enter stage 3 of Medicare Part D. This used to be known as the coverage gap stage, aka the “doughnut hole.” The doughnut hole was closed in 2020. Yet I am still paying co-pays for my prescription drugs. The change is that the amount I pay for brand drugs is 25% of their total drug cost. This is the same I would pay for generic drugs. More importantly, this is also the same percentage I paid before I entered the coverage gap. Therefore, there is no longer any “gap” between what I paid for drugs before I entered the doughnut hole and now that I am in it.

To get into the doughnut hole, I had to spend a total of $4,020 for prescription drugs. This amount included both what my drug plan AND I paid.

During the coverage gap, although I still pay 25% of the drug cost, I get a manufacturer’s discount of 70% on brand drugs. I remain in the doughnut hole until the amount I pay, plus the manufacturer’s discount, reaches $6,350 during a calendar year. The 5% that my drug plan pays during the coverage gap does not count toward the $6,350.

As of the end of October 2020, what I have paid ($2,016.81) and the manufacturer’s discount add up to $5,917. I am close to reaching the catastrophic stage 4, which will begin once my costs and the manufacturer’s discount exceed $6,350. During the catastrophic stage I will pay the greater of 5%, or $3.60 for generic and $9.95 for brand name drugs.

I reached the coverage gap stage because I take several expensive heart medications. One of them, Jardiance, costs $1,603.84 for a 90 day supply. The same drug costs $209.19 in Canada. This is almost 90% less than in the United States!

I have discussed drug prices with my local pharmacist. She told me that the drugstore’s profit margin is “very tight.”

Who is making the exorbitant profit on Jardiance?

Meanwhile, the debate over prescription drugs continues to be part of our political discourse.

President Trump campaigned in 2016 to reduce prescription drug prices. He has not yet revealed any plan for doing so – and it is November 2020.

Some Observations

1) The Secretary of Health and Human Services for the Trump Administration, Alex Azar, was previously the head of Eli Lilly Pharmaceutical Company.

2) Last December, the House of Representatives passed – along party lines – a significant expansion of Medicare. The proposed legislation would cap an individual’s total out of pocket spending for drug costs at $2000 per year. The bill would expand Medicare to include hearing aids, dental services, and vision care.

The legislation would be financed by authorizing Medicare to negotiate drug prices under Medicare Part D. Medicare already does this for Medicare Part A. The V.A. does, too. President Trump announced that he would veto this bill if it passed the Senate. In a letter to Senate Majority Leader Mitch McConnell, the president wrote that authorizing Medicare to negotiate drug prices would “inhibit the development of new medications.”

3) Our nation is in the midst of a pandemic.

4) We are surviving a national election.

5) “Health: The First Wealth of Nations.” (Ralph Waldo Emerson)

6) “Health: A Nation’s Only True Prosperity.” (Emerson, again)

7) Elections matter.

I invite any comments or questions. Thank you.

This article was originally published on the State Bar of Wisconsin’s Elder Law and Special Needs Blog. Visit the State Bar sections or the Elder Law and Special Needs Section webpages to learn more about the benefits of section membership.