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Seniors Legal Rights

Health Care

Your health is important. That’s why it’s important to understand your health care rights, know your options to make advance plans, and be able to separate the snake oil from the legitimate product or service. This section addresses health issues of particular concern to seniors, including health care fraud, your rights when purchasing medical products and services, advance directives, Medicare and Medigap polices, nursing homes, and your rights as a patient.

Medicare and Medicaid

Medicare and Medicaid assist eligible persons with health care expenses. Both programs change frequently in terms of coverage and eligibility rules, so be sure to check the resources listed below to get the most up-to-date information.

Medicare

Medicare is a federal program available to most persons 65 or older, to disabled persons under 65 who qualify for Social Security disability or Railroad Retirement disability benefits, and to certain persons with permanent kidney failure. Medicare is administered by the federal Social Security Administration and is available without regard to income or asset levels. You should apply for these benefits three months before you turn 65, to allow time for processing your application. You should apply for Medicare coverage at age 65 even if you do not plan to draw Social Security retirement payments at that time.

Medicare is the federal government’s health insurance program for people 65 years old and older and certain younger people with disabilities. Medicare Part A covers hospital and some short-term nursing home services. Part B covers physician and other professional services. Parts A and B are referred to as “Original Medicare.” Part C is the Medicare Advantage Plan, which is a managed care plan provided through private health plan companies and provides the benefits covered under Part A and Part B. Part D covers outpatient prescription drugs. People who are entitled to Social Security benefits pay no premium to receive Part A coverage, but must pay Part A’s annual deductible and co-insurance requirements. Part B, Part D, and Medicare Advantage Plan have monthly premiums in addition to annual deductibles and co-insurance requirements. It is important to note that there is an open enrollment period of six months following the start of your enrollment in Medicare Part B. During that open enrollment period, you cannot be denied Medicare supplement insurance due to an existing health condition.

If you join a Medicare Advantage Plan instead of Original Medicare, you may get extra benefits and lower co-pays, but you also may have to go to health care providers that are part of that plan.

There is an annual open enrollment period between October 15 and December 7 each year, during which you can join, switch, or drop a Medicare Advantage Plan.

If you are in the hospital under Medicare coverage, the rates the hospital can charge will be determined through Medicare’s Diagnosis Related Groups, or “DRG,” system. Under this system, hospitals have a greater financial incentive to discharge patients as early as possible. If you are in the hospital and feel you are being discharged too early, you have a right to challenge the decision. First talk to your doctor, who may agree that you should stay longer. If your doctor cannot fix the problem, and the hospital has not agreed to change its decision, call Stratis Health (formerly the Foundation for Health Care Evaluation) at (952) 854-3306 or (877) 787-2847. This organization makes sure hospitals follow Medicare’s patient care rules.

Medicare does not cover all health care costs, and it is important to check what level of payment will be made for a particular service. There are also “Medigap” policies available which help fill in the gaps in Part A and Part B coverage. Medigap policies do not pay for an individual’s out-of-pocket costs under Medicare Advantage Plans, so usually it is not necessary to buy a Medigap policy if you sign up for a Medicare Advantage Plan.

Medicare Supplement Policies

Medigap or Medicare supplement policies can be purchased to help “fill in the gaps” to cover health care services that Medicare does not cover. In Minnesota there are two standard Medicare supplement policies, “basic” and “extended basic.” Seven optional “riders” are available with the basic policies. As the name implies, extended basic policies are more comprehensive than basic policies.

Compare plans before you buy. Consider your health needs and the cost of the plans to make the right choice for your good health. If you don’t understand what is covered by a policy, ask questions. Protect yourself by following these guidelines:

There may be reasons why one of these policies might help you. As with other financial planning decisions, it may be helpful to consult with a financial planner or other qualified professional who does not directly benefit by your purchase of such a policy.

You can also contact the U.S. Department of Health and Human Services (“DHS”) to receive the guide "Medicare and You." The guide is available free of charge, in print or electronic format, in English or in Spanish, by calling (800) 633-4227.

If you run into problems or have questions, you can call the Attorney General’s Office at (651) 296-3353 or (800) 657-3787, or the Department of Commerce, Enforcement and Licensing Division at (651) 539-1500.

Medicare Supplemental Programs

DHS administers several programs for Medicare enrollees that can help with Medicare costs: Qualified Medicare Beneficiary (“QMB”), Service Limited Medicare Beneficiary (“SLMB”), Qualified Individuals (“QI”) and Qualified Working Disabled (“QWD”). Please note that the dollar amounts, below, are effective from July 1, 2017 through June 30, 2018. The numbers change each year because they are based on the federal poverty guidelines. (The changes are usually small increases.) To get up-to-date dollar amounts after June 30, 2018, please contact the Senior LinkAge Line at (800) 333-2433, your local county human services agency, or the Minnesota Department of Human Services at (651) 431-2000.

Qualified Medicare Beneficiary (“QMB”)
QMB pays your Medicare premiums, deductibles, co-insurance, and co-payments. To qualify, you must:

  1. Be enrolled in or eligible to enroll in Medicare;
  2. Have no more than $10,000 total countable assets for a single person or $18,000 for a family of two; and
  3. Have monthly income of no more than $1,025 for a single person, $1,374 for a family of two, or $1,723 for a family of three.

Service Limited Medicare Beneficiary (“SLMB”)
SLMB pays your Medicare Part B premium. To qualify, you:

  1. Must be enrolled in or eligible to enroll in Medicare;
  2. Have no more than $10,000 total countable assets for a single person or $18,000 for a family of two; and
  3. Have monthly income of no more than $1,226 for a single person, $1,644 for a family of two, or $2,062 for a family of three.

Qualified Individuals (“QI”)
QI also pays for Medicare Part B premiums. To qualify, you:

  1. Must be enrolled in or eligible to enroll in Medicare;
  2. Have no more than $10,000 total countable assets for a single person or $18,000 for a family of two; and
  3. Have monthly income of no more than $1,377 for a single person, $1,848 for a family of two, or $2,319 for a family of three.

Qualified Working Disabled (“QWD”)
QWD pays your Medicare Part A premium if you are not eligible for premium free Part A and you meet income and asset limits. Assets may not exceed $4,000 for a single person or $6,000 for two people. Monthly income may not exceed $2,030 for a single person, $2,727 for a family of two, or $3,424 for a family of three.

Medicare Part D Prescription Drug Benefit

A prescription drug benefit under Medicare, known as Part D, is available for people enrolled in Medicare. The drug benefit is offered through two types of private health plans:

  1. Stand-alone Prescription Drug Plans (“PDPs”) that supplement the original Medicare plan; or
  2. Medicare Advantage (Medicare’s version of managed care) plans that provide drug coverage and other Medicare-covered benefits.

Importantly, while Medicare requires all plans to offer certain types of drugs, Medicare does not require that all plans offer the same drug formulary. This means that before you sign up for a plan, you should make sure that the plan’s formulary covers your drugs in the dosage that you need. Formularies can change from year to year, so check your plan’s formulary during the Medicare open enrollment period to make sure your plan still carries the drugs you need.

Part D plan benefits and cost structures vary widely. All Part D plans must offer either the standard benefit or a benefit of equal value, and plans may also provide enhanced benefit options for a higher monthly premium. In 2017, the standard benefit requires enrollees to pay: a monthly premium set by the plan; a $400 deductible; 25 percent cost-sharing up to the initial coverage limit of $3,700; 100 percent of drug costs until their out-of-pocket spending reaches $4,950 (this is known as the “donut hole” gap in coverage); and a small co-pay or 5 percent of their drug costs thereafter, whichever is higher. Certain low-income beneficiaries are eligible to receive assistance with their Part D costs.

Additional information and assistance with Medicare Part D is available online, at www.medicare.gov, external link iconor by calling (800) 633-4227. You may also contact the Senior LinkAge Line at (800) 333-2433 for assistance with Medicare Part D.

Medicaid (Medical Assistance)

In Minnesota, Medicaid is known as the Medical Assistance program, or “MA.” MA is funded jointly by federal, state, and local government. It pays for all, or nearly all, medical expenses for eligible individuals. Covered services include hospital, nursing home and home health care services, doctor and dental services, prescription drugs, and eyeglasses. MA is administered by the Minnesota Department of Human Services, through the local county human services agencies. Eligibility for MA is based on income and assets of the individual or couple (or family, if there are children 18 years of age or younger).

It is important for you to apply for MA as soon as possible if you are in need of assistance. To apply, or to get information, call your county human services agency. You can apply even if you’re not sure you are eligible. You may be eligible to have part of your medical bills covered even if your income is over the monthly allowable limit. MA can pay for medical expenses you incur up to three months before you apply for the program. (You must be told why you are not eligible if you are denied MA coverage.)

Certain transfers of property (such as giving land, property, or other assets to your children) may make you or your spouse ineligible for MA for an extended period of time, so consult a reliable professional or your county human services agency before making any such transfers. Also, you may be eligible to keep more of your assets (or transfer more to your spouse) than you expect, so check eligibility guidelines before you allow your assets to get too low. Home health care funding (such as Alternative Care grants) and other types of assistance are available to help you stay at home rather than go to a nursing home, if you qualify. Check with your county human services agency to find out what is available.

Watch Out for Insurance Scams

Protect yourself by knowing the signs of a scam. Disreputable agents often use tactics such as:

Health Products

Prescription Drugs

In the past few years, many prescription drug companies have formed business relationships with pharmacy groups and insurance companies that handle drug-benefit plans. In some cases, pharmacies and insurers receive rebates or other financial incentives when they convince a plan member to switch to a different drug. If you are uncomfortable switching medications, check with your doctor or pharmacist. Ask the following questions:

The cost of prescription drugs can sometimes be overwhelming, particularly for people on fixed incomes. You need to take care of your health, but you also need to manage your budget.

Prescription drug costs can vary greatly from one source to another. Pharmaceutical manufacturers negotiate prices with purchasers of drugs; varying levels of discounts are given to large and small purchasers. Discounts are generally greater for large-volume purchasers such as hospitals, employers, or managed care companies. Smaller-volume purchasers, such as individuals, may not have access to such discounts. But there are some things you can do to help reduce your out-of-pocket expenditures for prescription drugs:

Hearing Aids

More than 24 million Americans have some type of hearing impairment. Many people can benefit from a hearing aid, but not everyone. How will you know? The process begins with a careful fitting by a qualified audiologist or seller. In Minnesota, a written prescription or recommendation from a physician or audiologist is required before a hearing aid dispenser can sell you a hearing aid. Further, the seller must be certified by the Commissioner of Health. Hearing aid sellers are prohibited by law from using false advertising claims, deceptive business practices, or misrepresenting products or services. All hearing aid contracts must be in plain language.

If you buy a hearing aid, you are entitled to a 45-day money-back guarantee. If you decide to cancel your purchase for any reason, you must do so in writing. The hearing aid seller must then refund 90 percent of the purchase price within 30 days after receiving your written notice to cancel. The seller may retain 10 percent of the total purchase price as a cancellation fee.

If your hearing aid needs to be repaired or adjusted during this 45-day money-back guarantee period, the 45-day period must be extended one day for each 24-hour period that the hearing aid is not in your possession. When you are notified that the repaired hearing aid is available, you must claim it within three working days, after which time the 45-day period will resume.

If you are buying a hearing aid, don’t be afraid to ask questions. Find out what guarantees come with the instrument and where you can receive service or repair if you need it. And, as with any consumer purchase, don’t be pressured into buying a particular hearing aid. Read the purchase agreement thoroughly before you sign it.

Health Care Directives

Minnesota law allows you to inform others of your health care wishes. A health care directive is a written document that lets others know your wishes regarding your health care. It allows you to name a person (or “agent”) to make decisions for you if you are unable to do so. Anyone 18 or older can make a health care directive. A health care directive is important if your doctor determines that you cannot make or communicate your health care decisions (usually due to an impairment). The directive guides your doctor, family, and friends regarding the care you would wish, at a time when you are not able to provide such information. You do not have to create a health care directive, and you will still receive medical care without one. However, a health care directive will help you get the care you would like.

There are forms that you can use to draft a health care directive. Ask your doctor, attorney, or the Minnesota Board on Aging for a form. You can use a set form or create your own directive, but your directive must follow these requirements to be considered legal:

Before preparing your directive, you may wish to speak with your doctor or other health care provider. Your health care directive may contain many items, including:

Remember—you may be as specific or general as you wish. There are a few limits to your health care directive, including:

Your health care directive lasts until you change or cancel it. If you wish to cancel it, you may do one of the following:

Your health care provider must follow your health care directive, or any instructions from your agent, as long as the health care follows reasonable medical practice. But, you or your agent cannot request treatment that will not help you or which your provider cannot provide. If the provider cannot follow your agent’s directions about life-sustaining treatment, the provider must inform the agent. The provider must also document the notice in your medical record. The provider must allow the agent to arrange to transfer you to another provider who can follow the agent’s directions.

Minnesota law allows people to create one form for all of their health care instructions. Living wills, durable powers of attorney, and mental health declarations created before August 1998 are still legal if they followed the law in effect when they were written or conform to the new law.

Additional information, including a sample health care directive form, is available in our publication Probate and Planning: A Guide to Planning for the Future. You can get a free copy by contacting the Minnesota Attorney General’s Office.

Nursing Home Care

Nursing Home Admission Contracts

State law requires nursing homes to provide their residents with important information in writing. The Nursing Home Admission Contracts Act prohibits nursing homes from waiving their liabilities and requires that admission contracts be easy to read and understand.

The admission contract (also known as an admission agreement) sets forth the terms and conditions of the resident’s stay at the nursing home. The Nursing Home Admission Contracts Act encourages a nursing home resident’s independence and autonomy by requiring that the resident personally sign the admission contract unless he or she is unable to do so. If the resident is incapable of signing the agreement, a family member or guardian may sign.

Nursing homes may not require a relative, other than a financially responsible spouse, to be financially responsible for the resident. A family member who wishes to agree to be financially responsible for the resident may do so. Although such a financial commitment is not required, a person who agrees to be a “responsible party” must ensure that an application for Medical Assistance is submitted and that payments due to the nursing home are made.

In the past, some nursing homes have required that residents sign a statement waiving all of the nursing home’s liability for loss of personal property and other loss. These waivers are now prohibited by law. Nursing homes must take responsibility to assure you that your personal belongings will be safe.

Admission contracts must state all contract terms in writing. Oral agreements between the resident (or resident’s family) and the nursing home will not be considered part of the contract and are not binding on either the nursing home or the resident. If a nursing home promises to do something, have it put in writing. You must be given a copy of the contract when it is completed.

Admission contracts also must inform residents that they have the right to refuse any treatment that they do not want. The contract may require the resident to agree to routine, day-to-day, or emergency care, but the nursing home must receive consent from the resident for all other types of care.
The admission contract also must state whether the nursing home participates in the Medicare, Medical Assistance, or Veterans Administration programs. If the nursing home’s participation in one of these programs is limited, that too must be specified. This information is important because it may affect how much you pay for your care.

Nursing home residents receiving Medical Assistance have additional protections. Occasionally, a nursing home resident will use his or her own funds to pay the nursing home while waiting for Medical Assistance eligibility to be established. Once eligibility is determined, this law requires the nursing home to bill Medical Assistance for reimbursement. The nursing home must then pay back to the resident the amount collected. In addition, a nursing home which participates in Medical Assistance will not be allowed to charge for the date of the resident’s discharge, or any subsequent days. This is true for private paying residents as well as those persons who have their care paid by Medical Assistance.

If you have questions about the Nursing Home Admission Contracts Act, or would like any additional information, contact the Minnesota Board on Aging Ombudsman for Long-Term Care at (651) 431-2555 or (800) 657-3591.

Nursing Home Rates

In Minnesota, most—but not all—nursing homes participate in the Medicare and MA programs, and are qualified to accept payments from those programs. All homes which participate in MA have their rates established by the Minnesota Department of Human Services (Medicare rates, however, are set according to federal law). Minnesota law prohibits nursing homes that participate in the MA program from charging more to their private pay residents than the rates paid by MA for similar care (except for private rooms). This law, known as the Equalization Law, also prohibits those homes from requiring residents to purchase special services from the home. Nursing homes that violate these provisions may be subject to legal action.

For additional information concerning nursing home rates, contact the Minnesota Department of Human Services or the Ombudsman for Long-Term Care.

Patients’ Bill of Rights

If you are a patient at a hospital, a resident of a nursing home or boarding care home, or in an adult foster care program in Minnesota, the Patients’ Bill of Rights protects your civil and religious liberties, including independent personal decision-making and the knowledge of available choices. The law also specifies that the facility must advise you of these rights in writing when you are admitted. The facility must also make a written statement of these rights available to you at your request. These rights include the following:

Home Care Bill of Rights

The Home Care Bill of Rights is similar to the Patients’ Bill of Rights and applies to people who receive home health services in Minnesota. Some additional rights provided by law if you receive home health services are:

Providers that violate patients’ rights or home care recipients’ rights may have action taken against them by the Minnesota Department of Health. You may contact the Office of Health Facility Complaints of the Minnesota Department of Health, (651) 201-4201 or (800) 369-7995, for more information or to file a complaint. You may also bring private legal action to enforce these rights.

Schemes and Scams

Medical Quackery

So-called “sure-cures” for medical problems steal millions of dollars from seniors each year. These fake cures also keep thousands of people from pursuing appropriate medical treatment or result in delays in obtaining valid, often necessary, treatment.

Newspaper and magazine ads often make fabulous claims about a “product,” use official-sounding titles, and contain testimonials from many “satisfied customers.” Today’s health care quacks try to convince you they’ve discovered new solutions to age-old problems. They hint that the federal government is keeping needy people from a product that has cured thousands in other countries. Don’t let them fool you. Outrageous claims should raise a red flag, alerting you that the claims being made are highly questionable.

Protect yourself by taking the following precautions:

Protect Yourself
Always discuss your medical problems with your physician. If you can’t get the help or information you need, ask for a second opinion or switch doctors—don’t start buying cures through the mail or on the Internet. You will almost always be disappointed—and poorer.

Medical Alert Systems (Personal Emergency Response System)

Medical Alert Systems or Personal Emergency Response Systems (“PERS”) are heavily marketed to seniors. A medical alert system summons help in an emergency, such as a fall or a heart attack, when the user cannot make a phone call. As sales of these devices grow, consumers should watch out for salespeople using scare tactics to sell the units at high prices. If you are interested in this type of system, consider renting one instead of buying. Many local hospitals provide this service at a reasonable rate.

Watch out for the following:

To help you shop for an alert system that meets your needs, consider the following suggestions:

Ask questions about the response center:

Protect Yourself
Local hospitals and businesses provide personal medical alert systems less expensively on a month-to-month basis. Consult with family, a friend, or other trusted figure before purchasing this service.

Alternative Medicines

Many unconventional treatments for cancer and other diseases are on the market. A few have undergone scientific testing. Many tests are inconclusive. Still, some forms of alternative therapy are recognized as helpful in caring for patients and helping them cope with some illnesses.

Usually, a primary care physician is the best source of information about alternative medicine as a supplement to conventional treatments. If someone tries to sell you an alternative treatment by promising that it is effective, be sure to do your own research and talk to your doctor about the alternative treatment.

If you receive services from an unlicensed complementary or alternative health care provider, and you believe the person has acted unethically or been abusive, you may file a complaint with the Department of Health’s, Office of Unlicensed Complementary and Alternative Health Care Practice at
(651) 201-3727.

Cataract Surgery

Cataracts are a normal part of aging. If your doctor tells you that you have a cataract, ask whether you need surgery right away, what your risks are based on your general health, and what type of surgery may be appropriate for you, should you choose it.

Be cautious if you are considering any promotion promising completely successful, risk-free cataract surgery. Cataract surgery has a very high success rate, but no surgery is free from risk. Serious complications are rare, but they do occur, and could result in loss of vision.