Monday, December 9, 2013
National Council on Aging Urges Public Support for This Week's Vote on "Qualified Individual" Medicare Funding
From the National Council of Aging (NCOA) a call for action, urging people to write their federal legislators:
This week, House and Senate Committees are scheduled to vote on a bill to permanently fix the longstanding problems with Medicare physician payments. The bad news is that the Medicare Qualified Individual (QI) Program may not get the fix it needs—leaving nearly half a million low-income people with Medicare facing new, unaffordable costs or reduced access to their doctors.
The QI program pays Medicare Part B premiums for beneficiaries with incomes of about $14,000-$15,500, most of whom already must spend over a quarter of their meager income on health care.
If the bills fail to make the QI program permanent, low-income seniors could be forced to drop the Part B benefit and lose access to their doctors, or pay over $1,200 in new, additional premiums.
This means that a senior with just a $14,000 income would only have $9,000 left for all their other living expenses.
The NCOA offers an easy form to use in emailing your Congressional representatives to urge them to vote to make the QI program permanent to protect seniors' economic security and access to physicians.
As readers of this blog will be aware from previous posts, Pennsylvania courts are willing to enforce the Commonwealth's filial support law. The law, at 23 Pa. C.S.A. Section 4603, makes spouses, parents or adult children potentially liable to "care for and maintain or financially assist" each other where the care-needing family member is "indigent." Pennsylvania's law has been interpreted as giving nursing homes or other third-party caregivers standing to sue.
The suits can cross state lines, usually because the target defendant is an out-of-state son or daughter of a nursing home resident in Pennsylvania, thus creating potentially interesting questions of personal jurisdiction. But the latest suit I've seen is an interesting twist on that fact pattern.
In Eades v. Kennedy, P.C. Law Offices, filed in United States District Court for the Western District of New York, a New York husband and daughter are the plaintiffs, suing a Pennsylvania law firm that attempted to collect a nursing home debt "by means of at least one item of correspondence and at least one telephone call." The plaintiffs in the New York suit are also apparently defendants in a Pennsylvania lawsuit filed by the nursing home. At issue is a bill for $8,000. The nursing home in question, located in Corry, Pennsylvania, is just a few miles south of the New York state line.
In the New York suit, Eades asserts that the collection attempts violated the Fair Debt Collection Practices Act (FDCPA) and further that the law firm's allegations of their liability under Pennsylvania's filial support law is "preempted" by federal Medicare/Medicaid law, under a provision of the Nursing Home Reform Act (NHRA) that bars a nursing home from requiring "a third party guarantee of payment to the facility as a condition of admission."
The New York federal district court dismisses the suit, concluding that there is no "jurisdiction," apparently both on subject matter jurisdiction and personal jurisdiction grounds. But then the ruling gets more interesting. The court proceeds to address the substantive claims by the family members, and seems to conclude that a cause of action under the FDCPA is not triggered by a "support" claim, including a filial support claim. Further, the court suggests there is no preemption under federal law for the following reasons:
"The NHRA holds that nursing homes may not require an individual's relatives to assume personal liability for the individual's care as a condition of admission or continued residence in the facility. The Pennsylvania indigent statute cannot be said to cover the same territory: it merely holds that where a resident is or becomes indigent, a nursing home may seek payment or reimbursement for the resident's care from their spouse, children or parents. It does not bypass the NHRA by permitting or excusing the assumption of personal liability by a relative for a nursing home resident's care as a consideration of admission or continued residence -- the sole evil that the NHRA ... appears to have been intended to prevent."
On December 3, 2013, the New York court dismissed the father/daughter's amended complaint for failure to "state a claim." The case is Eades v. Kennedy, P.C. Law Offices, No. 12-CV-66801, 2013 WL 6241272 (W.D. N.Y. 2013).
Thursday, December 5, 2013
Calling it a "matter of first impression," an intermediate appellate court in Pennsylvania has ruled that a woman's renunciation of her interest in a dissolved marital support trust was a transfer "for less than fair consideration," thus triggering ineligibility when she entered a nursing home and applied for Medicaid.
As reported in Schell v. Pa. Department of Public Welfare, decided December 4, 2013 by the Pennsylvania Commonwealth Court, a testamentary trust was dissolved in 2009, leaving approximately $300,000 to be distributed to the settlor's widow. The widow formally renounced her interest in the distribution, permitting the sum to be divided equally between the couple's two children, one of whom was disabled. Two years later, in 2011, the widow entered a nursing home and applied for Medical Assistance.
While DPW accepted the widow's "hardship" argument regarding the half distributed to the disabled daughter, the Court upheld DPW's challenge to the distribution of the other half to the son. The Court rejected the widow's argument that the penalty period could not apply to a trust created more than five years before her nursing home admission, on the ground that the key event was termination of the trust within the Medicaid lookback window:
"Once the trust was dissolved, Petitioner became entitled to any remaining income and principal therein. This income and principal was available for Petitioner to use for her support, but she made an affirmative decision not to receive the same, without any good cause explanation for so doing. . . . Upon Petitioner’s renunciation, the trustee distributed half of the remaining income and principal from the trust, $151,231.76, to her son. Petitioner received nothing in return, and, thus, the [Bureau of Hearings and Appeals] properly concluded that this transfer was for less than fair market value, thereby resulting in the imposition of a penalty period of 582 days."
Wednesday, December 4, 2013
In my travels, I often talk with families struggling to care for aging loved ones in the parents' home. One frequent topic is how challenging it can be, especially in certain parts of the country, to find reliable home care workers, especially if no adult child lives close enough to supervise.
Recently, one family described to me an additional complication, what to do when the best home care workers insist on being paid in cash, under the table. Here's the setting:
"When my father began to need more care than my mother could provide on her own, and more than I could provide by driving up for long weekends, we tried local agencies. We had almost constant problems with untrained workers and frequent turnover. I decided to try to hire someone directly, realizing that part of the problem was the low rates paid to the employees by the agencies, usually less than half of what we were paying the agency. In some instances the individual was making just over minimum wage, and often the agency refused to pay overtime, because our state law exempts home care workers from certain threshold Labor rules. When I started looking, I discovered that the agencies were advertising on Craig's List too, and I realized the agencies were finding it hard to get reliable workers. We were competing for the same workers.
Finally, I talked to a local Veterans office, who suggested that sometimes informal teams form, almost as spin-offs from an agency, and will work directly for the family. The team members are used to working together, and would cooperate with each other to meet our growing needs for around-the-clock care. They charge less than the agencies, but their take-home pay is higher.
I finally found this kind of local team, two mature women who would work on a shift system, coordinating with each other to provide reliable care. But there was one big problem. They refuse to sign a contract, work for an agency, or have any record of their care, and they won't work for our family if we insisted on withholding for taxes or Social Security. After weeks of problems with agencies, we were desperate, and they knew it. Even though Dad qualifies for VA aide & attendance, we cannot get reimbursed without proper records. The irony is these two woman are providing the best care we've had to date for my parents, and they are reliable. But they are insisting on cash. Frankly, they have us over a barrel, at least for the current emergency."
As depicted on the U.S. Department of Labor website, state laws vary on whether in-home care workers are covered by minimum wage and overtimes rules. The catch-22 is that in many instances, paying higher rates would make home-care unaffordable for families. However, low pay and no benefits are often analyzed, if not addressed, as issues of fairness for the worker, rather than the employer.
Unreported income is, of course, a long-standing issue for taxing authorities, usually discussed in the context of hiring a nanny, house-cleaner, or gardener. Is under-the-table pay for home care workers a trend in your area of the country? Feel free to send us links to emerging legal research on this topic.
Tuesday, December 3, 2013
First Court Challenge FiledTo State Statute Restricting Assistance to Consumers Seeking ACA Coverage
Wednesday, November 27, 2013
About 80% of Continuing Care Retirement Communities (CCRCs) in the U.S. operate as 501(c)(3) tax-exempt organizations. Over time, what were once fairly humble establishments with strong church or fraternal organization ties, have expanded to serve the needs and interests of their clientele. In some instances, the facilities and amenities are now distinctly "high end," operating with lighter affiliations to religion or other charitable groups. Increasingly, for-profit management companies are hired to provide the day-to-day services.
Understanding the reasons to exempt CCRCs from federal income taxes takes a bit of history. For example, in 1972, the IRS issued Revenue Ruling 72-124, noting that providing for the "special needs of the aged has long been recognized as a charitable purpose" for Federal tax purposes. As such, a CCRC was viewed as relieving the distress of aged persons by providing for the primary needs of such individuals for housing, health care, and financial security. Thus, a CCRC could be treated as tax exempt under Section 501(c)(3) of the Code as an organization organized and operated exclusively for charitable purposes.
State and local tax authorities, however, may employ a more exacting standard on CCRCs in order to qualify for charitable tax exemptions, including property tax exemptions. For a thoughtful analysis of the different standards, see "The Commerciality Doctrine as Applied to the Charitable Tax Exemption for Homes for the Aged - State and Local Perspectives," by Professor David Brennan (Kentucky Law), published in Fordham Law Review in 2007, and still very relevant.
Thursday, November 21, 2013
Via the Center for Medicare Advocacy:
Late November is often a time for gatherings with family and friends – Thanksgiving and Hanukkah, soon followed by Christmas and the New Year. Nursing home residents often want to participate in these gatherings but may worry that they will lose Medicare coverage if they leave the facility to do so. Residents and their families can put their minds at ease. According to Medicare law, nursing home residents may leave the facility for holidays without losing their Medicare coverage. However, depending on the length of their absence, beneficiaries may be charged a "bed hold" fee.
The Medicare Benefit Policy Manual recognizes that although most beneficiaries are unable to leave their facility, "an outside pass or short leave of absence for the purpose of attending a special religious service, holiday meal, family occasion, going on a car ride, or for a trial visit home, is not, by itself evidence that the individual no longer needs to be in a SNF for the receipt of required skilled care."
A facility should NOT notify patients that leaving the facility will lead to loss of Medicare coverage. The Medicare Benefit Policy Manual says that such a notice is "not appropriate."
Wednesday, November 20, 2013
Question: When is a hospital "stay" not a hospital "admission?" Answer: When someone has a financial incentive to treat it that way.
My colleague Becky Morgan has blogged several times on the serious problem with seemingly fictional "observation status" labels attached to hospital stays, as well as the so-called "3 Midnight" requirement. See Sept. 20 Post and Sept. 5 Post. For patients, the observation status fiction impacts on whether Medicare Part A will cover the care in the hospital. Further, without three nights of covered care in the hospital, Medicare may not cover subsequent care at a skilled care facility for rehabilitation.
Why do hospitals use "observation status" labels? Well, at last one reason is because the label may reduce the potential for regulation-based penalties to attach to later readmissions to the hospital. Why do regulatory authorities indulge in the fiction? Probably because -- on some level -- the consequences are seen as reducing Medicare costs.
Several bills are pending in Congress that would impact affected parties if enacted. Here's an inventory, complete with clever names. Let's hope the clever names are not more important than actually finding a solution:
- CARES Act: The "Creating Access to Rehabilitation for Every Senior" Act, H.R. 3531, introduced by Rep. Jim Renacci (R-OH), would eliminate the 3-midnight rule for transfers to certain "qualified" centers. This bill was introduced on November 19, 2013.
- Fairness for the Beneficiaries Act: Under H.R. 3144, a physician could certify that a resident requires skilled care for rehabilitation as a prequisite to Medicare Part A coverage. This bill was introduced by Rep. Jim McDermot (D-WA) on September 19, 2013
- Improving Access to Medicare Coverage Act: Rep. Joe Courtney (D-CT), introduced H.R. 1179 on March 14, 2013, would treat outpatient observation status services in a hospital as inpatient services for purposes of satisfying the 3-day requirement for extended care services in a skilled nursing facility. Senator Sherrod Brown (D-OH), sponsored parallel legislation, S. 569, in the Senate on the same day.
Any other pending legislation on this topic? Of course, some of the bills were also introduced in 2011, but generated no significant action.
Some interim administrative changes through CMS have generated opposition, as insufficient or unworkable. as reported in McKnights.
Monday, November 18, 2013
A number of years ago I attended a Philadelphia program on litigating personal injury disputes arising in long-term care. An interesting panel of attorneys on both sides of the disputes addressed what was then an emerging trend of state legislatures passing laws that barred or restricted enforcement of "mandatory arbitration" clauses included in nursing home admission agreements. At least one national trade group for nursing homes had actually adopted a policy against predispute mandatory provisions, responding to the public's perception of such clauses as "unfair."
Fast forward to February 2012, when the Supreme Court ruled that a West Virginia statute that barred pre-dispute mandatory arbitration provisions in nursing home contracts violated the Federal Arbitration Act. The brief, per curium ruling in Marmet Health Care Center, Inc. v. Brown, 132 S.Ct. 1201 (2012), was viewed as a setback for personal injury attorneys representing plaintiffs in personal injury cases.
Maryland Elder Law attorney Ron Landsman takes "A Second Look at Marmet Health Care Center: State Contract Law Provides Defenses to Nursing Home Contract Arbitration Clauses," his new piece for the NAELA Journal, going deeper into the implications of the Supreme Court's finding of federal preemption, as well as its remand for further findings on questions of unconscionability under the common law.
Ron points to the importance of careful planning by families prior to signing any nursing home agreement. His article highlights the role of attorneys, especially elder law specialists, in advising families of the potential significance of arbitration terms. He urges proper planning begins even earlier, when deciding how broadly to phrase powers of attorney or advance health care directives, and whether to give an agent the power to waive traditional litigation He concludes:
"Marmet leaves intact all of the state law approaches to attacking the formation of the contract, which gives the arbitration clause its power. Through a carefully drafted estate plan, thought about who signs at admission or after, Elder Law attorneys have a few options for maintaining their clients’ rights."
Thursday, November 14, 2013
U.S. Transportation Secretary Anthony Foxx today announced that the U.S. Department of Transportation (DOT), in its ongoing effort to ensure equal access to air transportation for all travelers, is requiring airline websites and automated airport kiosks to be accessible to passengers with disabilities. In addition, DOT will allow airlines to choose between stowing wheelchairs in a cabin compartment on new aircraft or strapping them to a row of seats, an option that will ensure that two manual, folding wheelchairs can be transported at a time.
The new rules are part of DOT’s continuing implementation of the Air Carrier Access Act of 1986.
“All air travelers should be treated fairly when they fly, regardless of any disabilities they may have,” said Secretary Foxx. “These new rules build on our past work in ensuring that our air transportation system is accessible for everyone, while balancing both airlines’ and passengers’ need for flexibility.”
Under the new websites-and-kiosks rule, covered airlines are required within two years to make pages of their websites that contain core travel information and services accessible to persons with disabilities, and to make all of their web pages accessible within three years. Websites are required to meet the standards for accessibility contained in the widely accepted Website Content Accessibility Guidelines (WCAG). The requirement applies to U.S. and foreign airlines with websites marketing air transportation to U.S. consumers for travel within, to or from the United States.
The rule also requires ticket agents to disclose and offer web-based discount fares to customers unable to use their sites due to a disability starting within 180 days after the rule’s effective date. Airlines are already required to provide equivalent service for consumers who are unable to use inaccessible websites. Under the new rule, airlines must also offer equivalent service to passengers with disabilities who are unable to use their websites even if the websites meet the WCAG accessibility standards.
In addition, any automated kiosks installed at U.S. airports for services -- such as printing boarding passes and baggage tags --must be accessible to passengers with disabilities until at least 25 percent of all kiosks at each airport location are accessible. Even if no new kiosks are installed, 25 percent of kiosks at each airport location must be accessible within 10 years. The standards for accessible kiosks are based on those set by the U.S. Department of Justice for ATM and fare machines in its 2010 Americans with Disabilities Act rule as well as the Section 508 standards for self-contained closed products, such as copiers.
Wednesday, October 16, 2013
Earlier this year, Congress passed the Reverse Mortgage Stabilization Act of 2013, and under this legislation the Federal Housing Administration (FHA) was directed to make key changes in the reverse mortgage program, also known as the "Home Equity Conversion Mortages for Seniors" program. FHA has issued several advisories to Lenders, Financial Counselors and Borrowers (links to recent "Reverse Mortgage Cautions" available here).
During my years in Penn State Law's Elder Protection Clinic, we often were frustrated by reverse mortgages. We saw clients who had taken out the mortgages without guidance on whether there was enough money to keep the home afloat, especially when equity was stripped to pay for daily living expenses, but there still wasn't enough money to pay real estate taxes. The mortgages sometimes delayed the client's departure from the home -- but not by much. Sometimes clients came to the Clinic in time for a discussion about whether selling the home would be a more effective solution to serious money problems, combined with moving into a more affordable rental. But, of course, pride and affection for the homestead, combined with the illusion of easy money, could be strong motivation, stronger than practical advice.
Will the FHA changes be effective to promote sound use of reverse mortgages?
Thursday, October 10, 2013
Center for Medicare Advocacy Alert: Proposed Legislation Would Implement Home Health Episode Payment Caps
Caution: Home Health Episode Payment Caps Legislation was introduced on October 4th that could lead to a cap on the home health services available to a Medicare beneficiary. In the midst of a government shutdown, Representatives Matheson (D-Utah) and Guthrie (R-Kentucky) introduced the "Medicare Home Health Fraud Reduction Act" (H.R. 3245). This bill would establish maximum annual reimbursements to Medicare home health agencies. Instead of a payment cap for each beneficiary, such as the current annual cap on Medicare-covered outpatient therapy, this bill would impose an aggregate payment cap for each home health agency's caseload. While promoted as an anti-fraud measure that would have little impact on beneficiaries, to the contrary, the Matheson-Guthrie proposal is a dangerous policy that would create barriers to care for individuals with long-term, chronic conditions. Further, it would jeopardize implementation of the Jimmo v. Sebelius settlement. That settlement reiterates Medicare policy that medical improvement is not the deciding factor in determining the availability of Medicare-covered nursing and therapy services for persons with chronic conditions.
Over the past several years, legislators, think tanks, and other entities have offered policy proposals to reduce Medicare expenditures. Many of these proposals purport to save federal dollars by shifting additional costs directly to Medicare beneficiaries. Examples include: raising premiums for middle and higher income people; increasing deductibles and copays; prohibiting or discouraging the purchase of the most generous Medigap plans; and instituting copays (cost-sharing) for home health services. Many players potentially affected by proposals to reduce Medicare expenditures – including provider groups – act to thwart proposals that would adversely impact them. The home health industry opposes requiring copays on home health services, a position with which the Center for Medicare Advocacy strongly agrees. In an effort to ward off home health copays, elements of the home health industry have offered alternative proposals that could potentially save federal dollars by limiting the home health benefit for beneficiaries.
Sunday, October 6, 2013
As my colleague Kim Dayton reported late last month, the National Women's Law Center has reported new statistics showing a disturbing, 2012 increase in poverty for woman over 65. The New York Times in a weekend editorial takes up the implications of the latest stats, warning against planned cuts in cost-of-living benefits under Social Security.
Hat tip to Professor Ann Murphy at Gonzaga, with special thanks for sharing the editorial -- and supportive words -- during our respective late night writing sessions!
Thursday, October 3, 2013
A new Harris Interactive/HealthDay Poll finds that "more than two-thirds of Americans are anxious and uncertain about how they'll meet nursing home or home care costs should they need them." Fair enough. Plenty of good reasons for such anxiety.
However, in summarizing the poll results, the Harris folks also conclude:
"Most people were also wrong about how most of these costs are covered under the current system. About half (49 percent) mistakenly thought the bulk of the bill was paid by individuals, while one-third guessed Medicare. Only 19 percent understood that the major funder of long-term care is actually Medicaid, the government agency that covers health services for the poor."
But were those people actually "wrong?" Perhaps it depends on what you mean by "long-term care." If you are viewing that care as provided by paid individuals, whether in the home or in a facility, then the Harris poll's conclusions accurately point to Medicaid's continuing role as a dominant payment source.
But in the US the largest source of elder care is still the family, as documented by AARP Public Policy Institute's 2011 Update. Even though family members are not usually "paid" for the care with dollars per hour, there is a cost associated with that care. For example, famly care-givers are often unable to engage in other paid employment, or take time off from careers to assist with elders. And thus, perhaps interviewees for the Harris poll were correct, because they were thinking about the realities of families assuming the costs of long-term care.
In other countries, a distinction is often made between "health care" and "social care." What we call "long-term care" in the United States tends to lump these concepts together, while the most frequently needed services, such as assistance with bathing, dressing, meals, monitoring for safety or supervision with other activities of daily living, would often be characterized as social care in other countries. Caution is necessary in using labels to characterize the cost of care for older adults (or for any individuals needing assistance).
Monday, September 30, 2013
"Perdue tried to get help from Meals on Wheels Atlanta. In mid-April of 2012, she was twenty-seventh on a waiting list of 120. In November, she was still on the list, which had grown to 198. Her daughter finally found another program.
Such is the world of food rationing for the elderly—the hidden hunger few ever see. Tenille Johnson, one of two case managers at Meals on Wheels Atlanta, said there were others on the list who were even more in need than Perdue. In 2012, the program served 106,000 meals—up from 84,000 three years before—and it will serve about 114,000 this year. “We’ve been able to up our game and reduce the waiting list to between 145 and 160 seniors, but the need has outpaced us,” says executive director Jeffrey Smythe. “The numbers are going up more quickly than we projected. We have waiting lists all over the metro Atlanta area, even in suburban counties.”
The Nation writer first reported on underfunding for programs assisting home-bound elderly in 1998. "Little has changed in the last fifteen years," she reports. Except, as her article demonstrates in detail, the need is greater, on a nation-wide basis.
"The National Association of Area Agencies on Aging says nearly 60 percent of all Older Americans Act programs had waiting lists in 2010, but the ones for home-delivered meals are particularly urgent, since food is so basic to good health."
Remember the Older Americans Act (OAA), first enacted in 1965? Meals on Wheels was once a core component of OAA's programming, and administered to the states through Area Agencies on Aging. Charities, churches and other nonprofits have not been able to cover the gap in funding. As discussed earlier on this Blog, Congress still has not reauthorized the OAA,and as Lieberman's article demonstrates, there are very real consequences to Congressional gridlock and Congress's failure to address even uncontroversial programs while rehashing party-politics on the Affordable Care Act.
Hat tip to Kevin Schock, Penn State Law, for spotting this timely article.
Friday, September 27, 2013
As a transformative movement in long-term care, "Culture Change" in the nursing home industry originated in 1997. In an article appearing in the October 2013 issue (Vol. 53, No. 5) of The Gerontologist, Professor Marshall B. Kapp (Florida State) contends that progress has been episodic and slow, in part because of "apprehension by staff, administrators, and governing boards about potential civil (tort) liability and regulatory exposure if residents suffer injuries that might arguably be attributed to facility conditions or policies that were inspired and encouraged by the culture change movement."
In "Nursing Home Culture Change: Legal Apprehensions and Opportunities," Professor Kapp uses the history of changes to dietary standards for meal service in nursing homes to illustrate his thesis. He urges specific strategies, including education of staff, residents and families, to promote positive innovations and ameliorate anxiety about legal consequences of change.
Thursday, September 26, 2013
HHS Approval of State's Cuts to Medicaid Reimbursement Rate Ruled Arbitrary & Capricious: 3d Circuit
In 2008, as required by federal law, Pennsylvania submitted proposed amendments to its State Medicaid Plan for approval by the U.S. Health and Human Services (HHS). The amendments created an across-the-board 9% reduction in the per diem reimbursement to nursing homes for care of residents eligible for Medicaid. The amendments were approved by HHS.
In 2009, a group of private nursing homes in Pennsylvania filed suit challenging the cuts, arguing the "BAF" method used to calculate the reductions failed to consider the impact of the cuts on quality of care, particularly after several years of cuts. The nursing homes sought declaratory and injunctive relief against officials at the federal HHS and Pennsylvania Department of Public Welfare (DPW), as well as monetary relief.
On September 19, 2013, the Third Circuit granted partial relief to the nursing homes, concluding there was no record by which HHS could make a proper review of the modifed state plan. The Court observed:
"Absent information on how the appropriated amount was determined, or a reasoned explanation for why that amount allows for rates that are 'consistent with' efficiency, economy, quality of care, and adequate access, DPW's description of the BAF methodology provides no insight into whether the [State Plan Amendment] complies with Section 30(A). The state gave no such information, and HHS did not request any. There are no studies or analyses of any kind in the record, and the only 'data' DPW provided was a spreadsheet comparing rates under the proposed SPA with those paid the previous year. HHS therefore had to base its approval decision solely on the proposed methodology itself, a comparison to the previous year's rates, and DPW's unsupported assertion that the new BAF would permit 'payment rate increases sufficient to assure that consumers will continue to have access to medically necessary nursing facility services.'”
While recognizing that state plans approved by federal agencies ordinarily warrant Chevron deference, the Third Circuit concluded deference was inappropriate in this instance. The court could not discern from the record a reasoned basis for the agency's decision and therefore the judges concluded HHS's "approval of the [2008 Amendments] was arbitrary and capricious under the APA."
Cuts to Medicaid reimbursement rates for nursing homes eventually affect residents, of course. Could states that skip key steps in approval for other changes to State Plans also be subject to due process challenges?
For the Third Circuit's detailed and technical decision, including reasons for its denial of monetary relief, see Christ the King Manor, Inc, et al v. Secretary of HHS.
Wednesday, September 25, 2013
The National Senior Citizens Law Center recently released "Why SSI Needs an Appeal Process that Works," NSCLC's first white paper describing the fate of non-disability claimants who experience improper suspensions or reduction of Supplemental Security Income (SSI) benefits, serious problems compounded by the lack of an effective and fair appeals process. Working with Legal Service programs and advocates around the country, NSCLC has identified pervasive flaws in the system, including the Social Security Administration's failure to:
- Process appeal requests;
- Continue benefit payments during the appeal;
- Conduct conferences required by law; and
- Issue adequate written decisions, permitting effective review or reconsideration.
These due process violations often go unchallenged because of the inability of claimants to find attorneys skilled or interested in handling appeals. The Social Security Act does not provide for awards of attorneys fees to successful claimaints on non-disability SSI appeals. On almost all levels, the system is stacked against the non-disability SSI claimant. NSCLC attorney Kate Lang explains:
"For the low-income individuals who depend on SSI benefits to access housing, food, medical care and other necessities, their inability to pursue an appeal effectively can have immediate, severe consequences. When their income is incorrectly stopped or reduced, these vulnerable individuals face hunger, homelessness and the inability to access vital medications."
NSCLC attorneys are advocates for the nation's elderly poor, and urge specific systemic change. For news stories tracking NSCLC projects to secure the health and financial security of older persons, see NSCLC in the News.
Wednesday, September 18, 2013
The Department of Labor has issued new regulations ensuring that, effective January 1, 2015, most direct care workers will be entitled to receive federal minimum wage and overtime pay protections. Direct care workers are workers who provide home care services, such as certified nursing assistants, home health aides, personal care aides, caregivers, and companions. The rules are a response to the Supreme Court's 2007 decision in LONG ISLAND CARE AT HOME, LTD. v. COKE (No. 06-593) , 462 F. 3d 48 (2007), in which the Court upheld an exemption to wage and hour laws for many domestic workers.
DOL has set up an area within its website explaining the effect of the new rules on workers, employers, and individuals needing home care. Check out the new rules and the website here.
Friday, September 13, 2013
From the good folks at the National Senior Citizens Law Center, we have a webinar, providing an update on their victory in Clark v. Astrue. That's the class action case where NSCLC was successful in challenging the summary suspension of Social Security or other benefits for individuals with pending arrests warrants or other criminal record entries.
The free NSCLC/NCLC on-line program takes place on September 25, 2013, at 2 p.m. EDT. Details, including registration, available on the NSCLC website: "Fugitive Felons: Clark v. Astrue Implementation for SSI, Social Security & Similar Provisions in Other Benefit Programs."