Sunday, November 22, 2015
Prior to the Bipartisan Budget Act of 2015 , all indications pointed to a pretty significant increase in the 2016 Part B premiums for Medicare. However, the increase was much less than expected in part because of the compromise in the Budget Bill. The Kaiser Family Foundation released a very helpful issue brief on November 11, 2015, explaining the developments and the impact on beneficiaries. What's in Store for Medicare's Part B Premiums and Deductible in 2016, and Why? explains the premium increase, the hold harmless provision and a $3 repayment surcharge to make up the deficit Part B will incur in 2016 because of the lower premium. ("includes a $3 repayment surcharge, which will be added to monthly premiums over time to cover the cost of the reduced premium rate in 2016.")
The brief explains the hold harmless provision, identifies the categories of beneficiaries who will have to pay the higher premiums (and why) and the amount of premiums paid by higher income beneficiaries. The brief also offers a projection for 2017 and concludes that but for Congressional intervention, "in the face of flat Social Security benefits and rising out-of-pocket costs, many people on Medicare could have greater difficulty affording their medical care costs in the coming year."
Thursday, November 19, 2015
CMS has released the 2016 amounts for deductibles, premiums, and co-pays for Medicare A and B. The Inpatient Hospital Deductible and Hospital and Extended Care Services Coinsurance Amounts are available in the Federal Register here. (The inpatient deductible is $1,288 for 2016). The Part B amounts are available here. Remember because there is no COLA this year, the hold harmless provision keeps the Part B premium the same as last year for many Medicare Beneficiaries. For those not protected by the hold harmless provision, their Part B premiums will be $121.80+ $3. Don't forget that higher income beneficiaries will pay a higher premium, referred to as the income-related monthly adjustment. The higher premium amounts can be found here as well.
Wednesday, November 18, 2015
Living in a Sunbelt state, I know how hot it can get in the summer months. I recently ran across a July 2015 decision from HHS' Departmental Appeals Board (DAB) reviewing the imposition of a "per instance" monetary penalty CMS assessed against an Arizona SNF.
CMS’s allegations in this case are predicated on complaints that portions of Petitioner’s facility – including several residents’ rooms – were uncomfortably hot. Those allegations are supported by the complaints of several residents and by temperature readings taken by a surveyor on July 16, 2014. Readings taken by the surveyor showed portions of some of the residents’ rooms being as hot as 90 degrees Fahrenheit.... Such temperatures plainly exceed what any reasonable person would consider to be "comfortable." On their face they comprise violations of 42 C.F.R. § 483.15(h)(6).
After discussing the ways the surveyor and the SNF measured the temperatures inside the SNF, the ALJ in the opinion notes
The overwhelming evidence is that rooms at Petitioner’s facility were uncomfortably hot due to the failure of the facility’s air conditioning system. Arizona in July is a very hot place. Building interiors in that State that are not adequately air conditioned can become dangerously hot. As Petitioner admits, the air conditioning in its facility had failed to work adequately in July 2014. The failure prompted residents to complain that their rooms had become uncomfortably hot.... The staff took various measures to address the failure of the air conditioning system, including closing curtains in residents’ rooms and conducting random temperature checks....
"The evidence that residents were not comfortable is overwhelming, beginning with these residents’ complaints and further evidenced by the fact that Petitioner’s own staff recognized that there were problems with overheating in the residents’ rooms." The ALJ upheld the penalty.
Coinciding with the presentation yesterday at the National Press Club in Washington, D.C., the journal Health Affairs released a report by Melissa Favreault, Howard Gleckman, and Richard W. Johnson, titled "Financing Long-Term Services And Supports: Options Reflect Trade-Offs For Older Americans And Federal Spending." Noting the history of weak buy-in for existing long-term care insurance products, the authors' study, funded by the SCAN Foundation, AARP and LeadingAge, looks to future alternatives. From the abstract:
To show how policy changes could expand insurance’s role in financing these needs, we modeled several new insurance options. Specifically, we looked at a front-end-only benefit that provides coverage relatively early in the period of disability but caps benefits, a back-end benefit with no lifetime limit, and a combined comprehensive benefit. We modeled mandatory and voluntary versions of each option, and subsidized and unsubsidized versions of each voluntary option. We identified important differences among the alternatives, highlighting relevant trade-offs that policy makers can consider in evaluating proposals. If the primary goal is to significantly increase insurance coverage, the mandatory options would be more successful than the voluntary versions. If the major aim is to reduce Medicaid costs, the comprehensive and back-end mandatory options would be most beneficial.
Tuesday, November 17, 2015
The Washington Post's magazine section runs a Work Advice column by Karla Miller. A recent question was intriguing:
As a longtime colleague of Susan’s, I’ve been asked by her boss to feel out whether she really means to leave the office only if “taken out in an ambulance or a coffin” (the boss’s words). I agree that it is probably time for her to retire (she is financially well off), but I also know she gets great satisfaction from her work. Should I broach the subject with Susan as a caring co-worker?
The response urges caution in participating in the employer's plan, observing bluntly "that smells like a steaming heap of age discrimination."
For the full discussion, See @Work Advice: Putting the Old, Gray Co-Worker Out to Pasture.
Thursday, November 12, 2015
The ABA is offering a webinar on VA Pension: Income Security for Veterans and Their Family. The 90 minute webinar is scheduled for November 17th, 2015 from 1-2:30 p.m. est. The website offers the following description of the webinar
This webinar will cover eligibility of veterans and their dependents for VA pension.
Panelists will discuss how to get the best results for a client looking to obtain a VA pension. Practical pointers on obtaining the highest amount for pension will be discussed, as well as how a client can keep that amount each year. Practice tips on dealing with a VA debt—due to an overpayment issue related to a VA pension—will also be provided. This presentation will give practitioners an understanding of the law and provide practical tips on how to work within the confines of the VA.
To register, click here.
Kudos to my Stetson colleague, Stacey-Rae Simcox, one of the panelists!
Wednesday, November 11, 2015
I was reading a recent article in the New York Times on estimating longevity in the context of the Social Security Trust Fund. Your Kids Will Live Longer Than You Thought ran in the NY Times on November 10, 2015. The article discusses statistics and probabilities, explaining how life expectancies are calculated. Looking at the Social Security projections of life expectancy, the article notes that SSA is likely too conservative in their longevity projections.
The Technical Panel on Assumptions and Methods established by the Social Security Advisory Board, an independent government agency that advises Social Security’s trustees on matters including actuarial assumptions, says Social Security is systematically underestimating future declines in mortality rates, and therefore underestimating the likely life spans of young Americans.
So this is a good news-bad news scenario. Good news for those who get more years of life, bad news for Social Security. "[O]ne quirk of Social Security is that a piece of obvious good news (People will live longer than we thought!) is bad news from the narrow perspective of paying for retirement benefits (The government will have to pay benefits longer!)." So how to handle Social Security's too conservative projections? The Congressional Budget Office "tweaked" them by increasing them.
Tuesday, November 10, 2015
On November 6, 2015 the appellate division of New York's Supreme Court addressed an issue long brewing in some states, whether Continuing Care Retirement Communities (CCRCs) can insist on "private pay" for skilled nursing care despite a resident's "eligibility" for Medicaid under state and federal laws. In Good Shepherd Village at Endwell, Inc. v. Yezzi, the unanimous panel affirmed summary judgment in favor of the CCRC on the payment question.
The decision highlights Congressional DRA action in 2005/6 that amended federal Medicaid law to expressly permit CCRCs to offer contracts that require residents to "spend on their care resources declared for the purposes of admission before applying for medical assistance." The DRA amendment was a response to the industry's lobbying efforts, following a 2004 decision by a Maryland appellate court in Oak Crest Village, Inc. v. Murphy that held such a contractual provision violated the federal Nursing Home Residents' Bill of Rights, viewed as prohibiting nursing homes from conditioning admission on guarantees of private pay.
In the New York case history, the couple apparently signed two separate documents, beginning with a "contract" at the time of their entrance into the CCRC that required them to pay both an entrance fee ($143,850) and "basic monthly fees" of approximately $2,550 to cover the cost of independent living. Any need for skilled nursing care would be assessed "an additional charge." That contract provided that residents could "not transfer assets represented as available" for less than fair market value. When the wife needed skilled care, the couple signed a second document, referred to in the case as an "admission agreement," for treatment in the CCRC's skilled nursing unit. The "admission agreement" reportedly required the Yezzis to "pay for, or arrange to have paid for by Medicaid" all services provided by the CCRC.
Monday, November 9, 2015
Professor Janet Dolgin from Hofstra University has a very good article in the October 2015 issue of ABA's The Health Lawyer on "Reimbursing Clinicians for Advance-Care Planning Consultations: The Saga of a Healthcare Reform Provision." The article offers facts, analysis, historical perspective and opinion about the need to approve payment to health care providers in order for them to be able to engage fully with clients and their families in careful conversations about advance care planning, including end-of-life decisions. The article is concise, but the downside for interested readers is the digital version of the article is currently behind a pay-wall for ABA Health Care Section members only.
To stimulate your interest in tracking down a hard copy, perhaps through your law colleagues or local law libraries, here are a few highlights. Professor Dolgin writes:
Advance care planning is part of good healthcare. Thus, paying clinicians to talk with patients about advance care planning makes sense: it enhances advance care planning and thereby serves to effect good healthcare. "If end-of-life discussions were an experimental drug," writes Atul Gawande in his recent book, Being Mortal, "the FDA would approve it." Yet efforts to provide for reimbursement to clinicians for time and attention given to advance-care-planning conversations with Medicare patients have been stymied since 2009 (at least until quite recently) by the politics of healthcare reform....
Published, peer-reviewed research shows that ACP [Advance Care Planning] leads to better care, higher patient and family satisfaction, fewer unwanted hospitalizations, and lower rates of caregiver distress, depression and lost productivity....
In July 2015 CMS accepted the recommendation [supported by AARP, the AMA and others identified in the article] and opened the proposal to [pay health care clinicians for such consultations] to a two month-comment period in its proposed physician payment schedule for 2016.... If the proposed rule is accepted by CMS, payments for advance-care planning consultations are slated to begin in early January 2016.
The article demonstrates well the tension between the use of administrative law options to achieve what Congress finds unable or unwilling to address as a matter of Congressional laws. Of course, administrative processes can gore the ox of either side on a politically-charged debate.
Perhaps I am alone in being sad that it takes billing codes approved by insurance providers and CMS to achieve appropriate consultation between health care staff and families about advance decision-making. But Professor Dolgin's article is a realistic explanation for exactly why that "is" necessary.
November 9, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink
Thursday, November 5, 2015
The U.S. Treasury announced the creation of a new retirement savings vehicle, myRA. According to the blog post announcing this, myRA is a "retirement savings account for individuals looking for a simple, safe, and affordable way to save for their retirement. Over thirty percent of all American households have no retirement savings. myRA provides a way to start saving for retirement."
MyRA is designed for those who don't have an option for a retirement savings plan through their jobs. There are some benefits to myRA:
There’s no cost and no fees to open and maintain an account;
The investment will not lose money;
U.S. Treasury backs the investment;
Account owners choose how much to save ($2, $20, $200 – whatever fits their budget);
If account owners change jobs, the account stays with them; and
Account owners can withdraw the money they put in without tax and penalty.
Tuesday, October 20, 2015
In the last month of life, one in two Medicare beneficiaries visits an emergency department, one in three is admitted to an intensive care unit,and one in five has inpatient surgery. But one of the most sobering facts is that no current policy or practice designed to improve care for millions of dying Americans is backed by a fraction of the evidence that the Food and Drug Administration would require to approve even a relatively innocuous drug.
The article explains why this evidence is important
The public and private sectors are now engaged in an unprecedented array of virtuous efforts to improve end-of-life care. That these efforts are generally not evidence-based is not the fault of the organizations promoting them. It is the responsibility of investigators and research sponsors to identify, develop, and rigorously test interventions so that they can offer guidance as growing political and cultural tolerance increasingly permits implementation of end-of-life care programs. Achieving evidence-based end-of-life care will require at least four key developments — which, fortunately, are now attainable.
The article discusses the four key developments and notes in conclusion "the central challenge is to avoid complacency regarding plausibly useful but non–evidence-based initiatives. Researchers, research sponsors, and large insurers, employers, and health systems can collaborate to advance knowledge about what works best for whom. And the sooner they do so, the better...."
Monday, October 19, 2015
Recently I was reading an issue of The Senior Care Investor, a subscription-based news service that reports on the "World of Senior Care Mergers, Acquisitions, and Finance," and doing so since 1948.
For approximately the last three years, most of the M & A activity has been in assisted living (AL) and memory care (MC). Senior Care Investor reports that CCRCs are "beginning to make a comeback" as the housing market recovers and prospective residents are again able to use equity in their homes to finance transitions into CCRCs. The most recent issue also indicates some development money is returning to the skilled nursing facility market, even as overall M & A activity in senior housing is lower in 2015 than in 2014.
I've been watching quite a bit of activity over the last few years in conversions of nonprofit senior housing operations to "for profit" and there is more evidence of that in the latest report. But the most recent issue (Issue 9, Volume 27) also reports on a "rare for-profit to not-for-profit deal," with a New Mexico-based company, Haverland Care LifeStyle Group, purchasing a new AL/MC community in Oklahoma.
Also, the Senior Care Investor reports on a faith-based, not-for-profit CCRC provider that has decided to sell an entrance fee model (one that's in transition to an "all rental" model) that will offer independent living, AL, MC units and nursing home beds. What happens when senior housing operations are fully "private pay" AND "rental" models AND disconnected from a faith-based organization? Can they maintain their tax-exempt status? In other words, if the public is paying market rates (and thus higher rates based on any market increases) with no promises of future care if the residents run out of money, is that senior housing enterprise still a nonprofit operation entitled to be treated as exempt from federal income taxes?
Wednesday, October 14, 2015
I'm always playing catch-up on my "must read" list, but fortunately, others keep me on task. One such article is Florida State Medicine and Law Professor Marshall Kapp's piece, inspired in part by Hendrik Hartog's 2012 book, Someday All This Will Be Yours.
In For Love, Legacy, Or Pay: Legal and Pecuniary Aspects of Family Caregiving, published by the Springer Journals of Case Management, Professor Kapp begins with this overview and note of caution about legal planning:
Most caregiving and companionship provided by family members and friends to elder individuals in home environments occurs because of the caregiver's feelings of ethical and emotional obligation and attachment. From a legal perspective, though, it might be ill-advised for an informal caregiver to admit to such a motivation.
He advises consideration of personal service or personal service agreements, explaining:
We must reject an analytically attractive and pure, but never really socially realistic, tendency to dichotomize the caregiver experience, recognizing instead that a person may simultaneously be both a family member, with the related emotional and ethical connotations of that label, and a business employee. Morality and materiality are not incompatible. Caregiving can be both an act of love and a marketable commodity bought and sold between non-strangers.
As Professor Kapp points out, if we as a society really wanted to encourage family caregiving without all too vague promises about future inheritances, we could go beyond mere tax credits and "instead use public funds to pay family caregivers directly."
It's that time of year...CMS releasing the 2016 figures for Medicare. For some beneficiaries, the amount of their Part B premiums and deductibles is going to be a big OUCH! The New York Times ran an editorial on October 10, 2015 on how the premiums and deductibles are calculated and what it means for some beneficiaries in 2016. The Unlucky Millions Paying More for Medicare explains
Under a 1997 law, premium payments must cover 25 percent of the projected per capita costs for Part B. The premiums, which can rise and fall from year to year, are usually deducted from beneficiaries’ Social Security payments each month. A “hold harmless” provision guarantees that for most people the dollar amount of a premium increase cannot be so big that they are left with a Social Security check that is less than that of the year before. The goal is to ensure that beneficiaries, most of whom have modest incomes, don’t have less money to live on.
Since there will be no Social Security COLA for 2016 but Part B premiums are set to rise, the impact is going to hit hard a certain group of beneficiaries:
The roughly 70 percent of beneficiaries who are “held harmless” will pay the same premium as last year. That means the increased cost will have to be made up by the other 30 percent, because of the rule that premiums must cover one-quarter of Part B costs. This group includes 2.8 million new enrollees, 1.6 million people who don’t collect Social Security benefits and 3.1 million higher-income beneficiaries.
How big a hit will this group take? A pretty big one. Consider this in dollar amounts.
The Part B premium has been just under $105 a month for three years, but it is projected to reach $159 in 2016 and then drop to $120 in 2017.
Similarly, the Part B deductible, which must be paid by everyone on Medicare (no one is “held harmless”), will rise from $147 in 2015 to $223 in 2016, before falling back to $169 in 2017. This will pose a particular burden to beneficiaries just above the poverty line who aren’t eligible for assistance from Medicaid in paying deductibles.
The editorial calls for action by Congress to resolve the way premiums are determined. But for now, OUCH!
Monday, October 5, 2015
Sorry for the short notice, but on Tuesday, October 6, 2015 from noon to 1 p.m. (Eastern time), the Pennsylvania Bar Institute is hosting a very timely (and cleverly titled) webinar, focusing on the impact of the Third Circuit's recent decision in Zahner on Medicaid planning generally and specifically on the sue of annuities.
Here is a link to PBI's details on "The A to Zahner on Medicaid Annuities," including how to register.
DOJ's Elder Justice Initiative & Office for Victims of Crimes, along with the Corporation for National and Community Service announced the creation of the Elder Justice Americorps. According to the website
[E]lder Justice AmeriCorps, a new grant program to provide legal assistance and support services to victims of elder abuse, neglect and exploitation and to promote pro bono capacity building in the field. This effort will expand a partnership between the two agencies, which includes justice AmeriCorps, a legal aid program launched in 2014 by the Department of Justice and CNCS to serve vulnerable populations.
The Elder Justice AmeriCorps program, which is intended to complement existing Office for Victims of Crime grants to support the development of legal assistance networks providing comprehensive, pro bono legal services for victims of crime, will consist of a single grant to an intermediary organization that will support approximately 60 full-time AmeriCorps positions for each year of the two-year program. Interested applicants can review the Notice of Funding Opportunity at http://www.nationalservice.gov/build-your-capacity/grants/funding-opportunities/2016/americorps-state-and-national-grants-fy-2016#FGSAAA.
Friday, October 2, 2015
The National Consumer Voice for Quality Long-Term Care is hosting a free webinar on October 6, 2015 from 2-3:30 p.m. According to the announcement
The proposed federal nursing home regulations published by the Centers for Medicare and Medicaid Services (CMS) in July will shape nursing home care for decades to come. CMS needs to hear what consumers, their families and advocates around the country think about the rule. This is one of the most important opportunities you will ever have to impact what these new federal nursing home regulations look like. Comments are due October 14 by 5:00pm ET.
This webinar is designed to assist advocates in understanding the proposed changes and in participating in the comment process.
Eric Carlson of Justice in Aging and Robyn Grant of the Consumer Voice are the presenters. To register for this webinar, click here.
Thursday, October 1, 2015
The National Academies Press has issued a new report, The Growing Gap in Life Expectancy by Income: Implications for Federal Programs and Policy Responses. Here is a description from the book
he U.S. population is aging. Social Security projections suggest that between 2013 and 2050, the population aged 65 and over will almost double, from 45 million to 86 million. One key driver of population aging is ongoing increases in life expectancy. Average U.S. life expectancy was 67 years for males and 73 years for females five decades ago; the averages are now 76 and 81, respectively. It has long been the case that better-educated, higher-income people enjoy longer life expectancies than less-educated, lower-income people. The causes include early life conditions, behavioral factors (such as nutrition, exercise, and smoking behaviors), stress, and access to health care services, all of which can vary across education and income.
Our major entitlement programs ? Medicare, Medicaid, Social Security, and Supplemental Security Income ? have come to deliver disproportionately larger lifetime benefits to higher-income people because, on average, they are increasingly collecting those benefits over more years than others. This report studies the impact the growing gap in life expectancy has on the present value of lifetime benefits that people with higher or lower earnings will receive from major entitlement programs. The analysis presented in The Growing Gap in Life Expectancy by Income goes beyond an examination of the existing literature by providing the first comprehensive estimates of how lifetime benefits are affected by the changing distribution of life expectancy. The report also explores, from a lifetime benefit perspective, how the growing gap in longevity affects traditional policy analyses of reforms to the nation?s leading entitlement programs. This in-depth analysis of the economic impacts of the longevity gap will inform debate and assist decision makers, economists, and researchers.
You can download the report as a pdf for free, read the report online, or purchase a hard copy of the report for $64. Click here for more information.
Wednesday, September 30, 2015
Jeff Guo, writing for the Washington Post, recently offered a provocative look at "tontines" as a theoretical retirement planning alternative to "annuities." Apparently these are advocated by some modern legal and financial experts:
Economists have long said that the rational thing to do is to buy an annuity. At retirement age, you could pay an insurance company $100,000 in return for some $5,000-6,000 a year in guaranteed payments until you die. But most people don’t do that. For decades, economists have been trying to figure out why....
But there’s also some evidence that people just irrationally dislike annuities. As behavioral economist Richard Thaler wrote in the New York Times: “Rather than viewing an annuity as providing insurance in the event that one lives past 85 or 90, most people seem to consider buying an annuity as a gamble, in which one has to live a certain number of years just to break even.”
Here is where tontines come in. If people irrationally fear annuities because them seem like a gamble on one's own life, history suggests that they irrationally loved tontines because they see tontines as a gamble on other people's lives.
A simple modern tontine might look like this: At retirement, you and a bunch of other people each chip in $20,000 to buy a ton of mutual funds or stocks or whatever. Every year, the group withdraws a predetermined amount and divides it among the remaining survivors. You might get a bonus one year, for instance, because Frank and Denise died....
Want to know more? Read It's Sleazy, It's Totally Illegal, and Yet It Could Become The Future of Retirement. Hat tip to David Pearson for sharing this story.
The Center for Elder Rights Advocacy (CERA) has announced their upcoming webinar on October 8th, 2015. The webinar, Social Security Fraud, Similar Fault & Penalties will take place from 2 - 3:30 p.m. eastern. According to the website
CERA presents a webinar regarding the issue of clients reporting an overpayment involving allegations by Social Security of “fraud or similar fault.” These cases present unique challenges for the hotline attorney. Social Security’s rules on overpayments differ when Social Security finds that the overpayment resulted from “fraud or similar fault.” Normal due process rules for overpayments do not apply, and Social Security can assess additional financial penalties when an administrative determination is made that “fraud or similar fault” is applicable. This webinar will address ways to advise clients who receive a notice from Social Security alleging an overpayment involving “fraud and similar fault,” or who have an overpayment on their record with such a determination. The webinar is particularly directed toward legal hotline advocates and managers.
This webinar addresses:
A review of rules applicable to “fraud and similar fault” findings.
A discussion of differences in normal overpayment collection cases vs. fraud cases.
Giving competent advice to clients faced with an overpayment arising from fraud or similar fault.
To register, click here.