Friday, September 12, 2014

Will Americans Still Be Paying Off on Student Loans As Seniors?

In a GAO study titled "Inability to Repay Student Loans May Affect Financial Security of Small Percentage of Retirees," researchers reveal that a significant -- and growing -- proportion of "student loan" debt is owed by Americans aged 65 or older.  In addition to the growth in the total amount of "senior" student loan debt, from $2.8 billion in 2005 to $18.2 billion in 2013, the GAO findings include:

  • Relatively few households headed by individuals 65 or older hold student loan debt -- the number is about 706,000 households in the U.S. -- but the amount they owe may be significant, with estimates that the median debt owed is around $12,000, as compared to a median for those aged 64 and younger of $13,000.
  • Most -- about 82% -- of this debt was for the individual's own education.  It is not known whether how "old" the loans are.
  •  Older borrowers hold defaulted federal student loans at a higher rate -- and defaults can have conquences, including offsets on Social Security payments.  Generally speaking, student debts cannot be discharged in bankruptcy; however adjustments may be possible to keep the individual's monthly income above the poverty threshold.

For more discussion on the GAO report, see "Senior (Citizen) Student Debt Rising," in Inside Higher Ed by Michael Stratford.  Hat tip to Professor Laurel Terry for pointing out this new study. 

September 12, 2014 in Current Affairs, Ethical Issues, Federal Statutes/Regulations, Retirement | Permalink | Comments (0) | TrackBack (0)

Book Review--Government Regulation in Excess?

Our friend and health law/elder law rock star, Marshall Kapp, sent me a note about a book review  he authored (thanks Marshall) that appears in The Gerontologist Advance Access.  The review is of the book, The Rule of  Nobody: Saving America from Dead Laws and Broken Government by Phillip K. Howard.

You may be wondering why a blog for elderlawprofs is posting about laws and government regulations.  Three words: nursing home regulation. Although a subscription is required to read the full review, an excerpt is available for free, much of which I have reproduced here

The brilliant satirist Jonathan Swift said long ago, “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.” (Brainy Quote, n.d.). Swift certainly did not intend that remark as a compliment to either laws or cobwebs. Nonetheless, almost all laws originate to accomplish some reasonably defensible public purpose, even though ... poorly drafted, inconsistently ... enforced, and perpetuated beyond ... their original justification ....             

In this latest project, Howard despairs that regulation in the United States has veered far from its proper function as a setter of boundaries or parameters within which individuals are empowered... (end of excerpt).

Since Marshall sent me a full copy of the book review, I can explain further what the abstract does not, how the author uses nursing home regulations as an example. Marshall describes this on page 1-2 of his review

One of the primary examples that author Howard utilizes throughout The Rule of Nobody to illustrate his constructive critique about the largely dysfunctional nature of the contemporary American regulatory situation is the overwhelmingly extensive and complex set of formal command and-control rules we have promulgated on the federal and state levels to govern the operation of nursing homes.

Marhsall offers a bit of history as to why we have so many laws and regulations for nursing homes and suggests that now is "the time to seriously contemplate smarter, rather than just bigger, regulation...." (review at page 2). He notes that the author provides examples of when the regulations don't end up benefitting the residents, with current regulations stifling innovation. (review at 3).  Marshall concludes his review with this summary

[T]he Rule of Nobody is noteworthy for the nation generally and for long-term care policy-makers particularly... Settling for being “in the ball park” is damning with faint praise, indeed. The only option for many vulnerable individuals is dependence on the benevolence of nursing home owners and workers and lawmakers’ careful guidance. Society owes them a system of oversight and influence that not only aspires to, but effectively achieves, a much loftier standard.

Another one to add to the reading list.

September 12, 2014 in Books, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Thursday, September 11, 2014

Fed Court in NY Takes Hard Line on Effect of "Partial Cure" for Medicaid Ineligibilty

Judge Geraci of the U.S. District Court, Western District of New York, is the latest judge to address an important topic in Elder Law regarding eligibility for long-term care benefits under Medicaid.  The court defines the issue as follows:  "When an uncompensated transfer of assets has been made and a [Medicaid] penalty period imposed, how does a partial return of the transferred funds affect the beginning of the penalty period?"  

In its August 2014 decision in Aplin v. McCrossen, the court addresses summary judgment motions in two separate cases that were filed on behalf of 80-year-old Florence Aplin and 85-year old Sergio Ciardi, both residents of nursing homes.  In one case, for example, the Aplin case, the transfers totaled approximately $450,000; however, approximately $76,000 was later returned by the donees. The hope of the plaintiffs was that "return" of the money would permit them to shorten their penalty periods tied to the original transfers.  This approach, when planned in advance, is a post-Deficit Reduction Act technique sometimes known in Elder Law circles as a "partial cure" (as part of "reverse half-a-loaf" gifting).

Judge Geraci denied the relief sought by the plaintiffs.  He followed the hardline approach of "nonprecedential" rulings on New Jersey disputes about partial cures, ruling that "return" of money permits the state agency to recalculate the start of the penalty period. The court decided that NY administrative rules do not conflict with federal policy and not only permit but require the state agency to, in effect, restart the penalty period on the ground that the later date is when the "applicant becomes otherwise eligible for Medicaid." This phrase is a key concept in federal Medicaid law.  The plaintiffs had argued that phrase applied only to an earlier date, from their original application. Judge Geraci concluded:

"I find no circumstances in this case which indicated that Defendants' interpretation and application of the provisions of [New York administrative directives] contravene Congress' articulated purpose in enacting the Medicaid Act -- to provide medical care, services and supplies for the financially needy.  Essentially, the assessment of an applicant's income and resources which results in a determination that such applicant has transferred resources for less than fair market value during the statutory look-back period and that an appropriate penalty period must be imposed, ensures that the applicant has not falsely impoverished himself or herself in order to qualify for medical assistance at public expenses which, by law, is undeserved."

While it is apparent that the New York federal judge was not eager to give applicants any benefit tied to partial cures on transfers, the decision also appears to approve or at least ignore what some would describe as a "perverse effect" of the New York policy.  By imposing a new, later "start date" for the ineligibility period following the return, New York can actually impose a penalty that is longer than the original penalty period for the full transfer. 

Also at issue in the case was the effect of a series of statements on the federal government's side, including the so-called "McGreal Letter" from CMS that was relied on by the plaintiffs in making the returns. (The court did not expressly address a May 2014 GAO study, where it was reported at page 28 that "[a]ccording to CMS, states can choose whether or not to consider a partial return of transferred assets on Medicaid planning.")

Should there be uniformity among the states, not just on whether but how families can seek any relief from "resource" limits set by federal law?  (The GAO study linked above indicates a range of different state-specific options are in play.) The answer to that question may depend on one's point of view.

For more background on the complex interaction between Medicaid applications, ineligibility periods triggered by uncompensated transfers, partial cure attempts and penalty start dates, see ElderLawGuy Jeff Marshall's blog post from 2011.    

September 11, 2014 in Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 10, 2014

U.S. Department of Justice Opens New "Elder Justice" Portal

The U.S. Department of Justice recently established an on-line Elder Justice Initiative, intended to assist the public, practitioners, and prosecutors with identifying and responding to all types of elder abuse.  Here are some of the highlighted resource links from the website:

Here, victims and family members will find information about how to report elder abuse and financial exploitation in all 50 states and the territories. Simply enter your zipcode to find local resources to assist you.
 
 
Federal, State, and local prosecutors will find three different databases containing sample pleadings and statutes.
 
 
Researchers in the elder abuse field may access a database containing bibliographic information for thousands of elder abuse and financial exploitation articles and reviews.
 
 

Practitioners -- including professionals of all types who work with elder abuse and its consequences -- will find information about resources available to help them prevent elder abuse and assist those who have already been abused, neglected or exploited.

September 10, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, August 21, 2014

Watch Oral Argument Before Ohio Supreme Court on "Asset Transfer" Case

Wow!  Medicaid transfer rules argued in prime time!  (Well, almost...)

On August 20, the Ohio Supreme Court heard oral argument on Estate of Atkinson v. Ohio Dept. of Job & Family Services, Case No. 2013-1773.  Video of the presentations (including the very interesting questions from the bench) can now be viewed here on the Ohio Channel. 

This strikes me as a great opportunity for Elder Law course students to read briefs and observe lawyers in oral argument tackle technical, challenging legal issues (listen to the Court ask one attorney to slow down and explain his use of pronouns).  Can you predict the outcome?  Note: The Supreme Court's arguments on Ohio Channel appear as high quality productions, well edited, with subtitles indicating the names of the speakers and the identity of the issues on appeal, and the website is searchable for other appellate cases for faculty members looking for examples to use in other classes.

As framed in the appeal, the issue is whether the community husband's actions triggered a period of ineligibility for Medicaid benefits for his wife in the nursing home.  The record showed the husband transfered the couple's  home "out" of the couple's long-standing revocable trust to the name of the institutionalized spouse, and then in turn, the same day, to the community spouse.  As described in one news account:

"The county department of job and family services found that the transfer of the home, valued at $53,750, was improper because it violated federal and state Medicaid rules. While Mrs. Atkinson’s Medicaid benefits were approved, the agency temporarily excluded nursing-home care from her coverage because of the transfer." 

The state has been successful with its arguments before state agencies up to this point.  The Ohio  Supreme Court, however, asked the attorneys about the applicability and relevance of the 6th Circuit's 2013 decision in Hughes v. McCarthy regarding permitted use of spousal annuities in Medicaid planning in Ohio.  During the oral argument, one Justice also asks whether the state should be bound by the position taken by the federal agency, Health and Human Services (apparently in an amicus brief), in support of the family's argument. 

There are also opportunities here to think about whether -- and how -- this particular transfer issue might have been avoided with different planning. 

August 21, 2014 in Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Changes Recommended for VA Fiduciary Program to Better Protect Veterans

Recent Duke Law graduate Whitney Bosworth Blazek is the author of a timely, interesting note, "Combating Privatization: Modifying Veterans Administration Fiduciary Program to Protect Incompetent Veterans" in a recent issue of the Duke Law Journal.  The abstract explains:

"Created to supervise the distribution of Veterans Administration benefits, the Veterans Benefit Administration Fiduciary Program was designed to help thousands of incompetent veterans handle their finances. Rather than directly managing each veteran's funds, the Fiduciary Program employs a privatization model whereby a private individual or institution is appointed to manage a veteran's assets. The Fiduciary Program then monitors these fiduciaries to ensure the veteran's funds are properly expended. 

This Note argues that in practice this privatization model is seriously flawed and that it exposes some of the most vulnerable portions of the veteran population's funds to misuse. In support of this conclusion, this Note compares the federal statutes, regulations, and internal directives that govern the Fiduciary Program--paying special attention to the Fiduciary Program Manual-- with audits performed by the Veterans Affairs Office of Audits and Evaluations and the U.S. Government Accountability Office. Relying on these audits, this inquiry rejects total reliance on substantive statutory reform in light of legislative and judicial barriers. Instead, this Note advocates for critical internal reforms designed to improve the Program's efficiency and functionality, the adoption of a state enforcement mechanism, and reliance on principles of cooperative federalism and interagency cooperation."

August 21, 2014 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Veterans | Permalink | Comments (0) | TrackBack (0)

Friday, August 15, 2014

DOJ settles with Louisiana Supreme Court re ADA claims: invasive bar exam application questions

The Department of Justice has entered into a settlement agreement under the Americans with Disabilities Act (ADA) to protect the right of qualified bar applicants with mental health disabilities to have equal access to the legal profession.  The agreement prohibits the Louisiana Supreme Court (the Court) from asking unnecessary and intrusive questions about bar applicants’ mental health diagnosis or treatment.  The agreement also requires the Court to refrain from imposing unnecessary burdens on bar applicants with mental health disabilities, such as requests for medical records, compulsory medical examinations, or onerous monitoring and reporting requirements.

August 15, 2014 in Discrimination, Federal Statutes/Regulations | Permalink | TrackBack (0)

Friday, August 8, 2014

President signs VA reform bill

President Obama traveled to Fort Belvoir, Virginia to sign a reform bill giving the Department of Veterans Affairs the necessary resources to improve access and quality of care for the men and women who have served our country in uniform. In remarks before the bill signing, President Obama addressed the misconduct that has taken place at some VA facilities across the country —

We’ve already taken the first steps to change the way the VA does business. We’ve held people accountable for misconduct. Some have already been relieved of their duties, and investigations are ongoing. We’ve reached out to more than 215,000 veterans so far to make sure that we’re getting them off wait lists and into clinics both inside and outside the VA system. 

We’re moving ahead with urgent reforms, including stronger management and leadership and oversight. And we’re instituting a critical culture of accountability -- rebuilding our leadership team, starting at the top with Secretary McDonald. And one of his first acts is that he’s directed all VA health care facilities to hold town halls to hear directly from the veterans that they serve to make sure that we’re hearing honest assessments about what’s going on. 

The VA reform bill -- officially the Veterans’ Access to Care through Choice, Accountability, and Transparency Act of 2014 -- passed Congress with overwhelming bipartisan support, and will expand survivor benefits and educational opportunities and improve care for victims of sexual assault and veterans struggling with traumatic brain injuries. But the main focus of the new law is to ensure that veterans have access to the care they’ve earned.

Source/more:  Whitehouse.gov

August 8, 2014 in Current Affairs, Federal Statutes/Regulations | Permalink | TrackBack (0)

Wednesday, July 30, 2014

Overview of Statutory Claims for Health Care Fraud and Abuse

John Washlick, a shareholder with Buchanan Ingersoll & Rooney in Philadelphia and Princeton, provides a concise and useful overview of laws that form the basis for claims of "fraud" or "abuse" associated with Medicare and Medicaid in the most recent issue of Pennsylvania Bar Quarterly (April 2014, available also on Westlaw).  The abstract to his article, "Health Care Fraud and Abuse," provides:

"Medicare and Medicaid combined comprise the largest payer of health care services in the world, and account for over 20 percent of all U.S. government spending.  As a result, efforts to combat fraud and abuse in these programs have become a congressional and administrative priority. This article will address four significant federal fraud and abuse laws: (i) Anti-Kickback Statute, (ii) "Stark" Anti-Referral Law, (iii) Civil Monetary Provisions, and (iv) False Claims Act (Civil and Criminal).  The Patient Protection and Affordable Care Act, more commonly referred to as the "Affordable Care Act" significantly strengthened each of these laws, including increased funding to step up enforcement actions.  There are other federal and state statutes that are aimed at curbing fraud and abuse and they should not be ignored when reviewing a financial arrangement between or among potential referral sources."

A useful guide, especially when reading about multi-million dollar settlements in whistleblower cases growing out of nursing home care, home care, hospice care, and pharmaceutical sales, such as the Omnicare settlement reported on the Elder Law Prof Blog today

July 30, 2014 in Federal Cases, Federal Statutes/Regulations, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Omnicare Inc. to Pay $124.24 Million in Settlement of Whistleblower Case

From the Department of Justice, news of the False Claims Act settlement reached with Omnicare Inc., "the nation's largest provider of pharmaceuticals and pharmacy services to nursing homes."  The company has agreed to pay $124.24 million "in return for their continued selection" as the supplier of drugs to elderly Medicare and Medicaid beneficiaries.  The claims related to improper discounts allegedly given by Omnicare as incentives for doing business with the company.

According to the DOJ press release, the settlement resolves two lawsuits filed by whistleblowers under the qui tam provisions of the False Claims Act. "The first whistleblower, Donald Gale, a former Omnicare employee, will receive $ 17.24 million." 

DOJ states that since January 2009, it has "recovered a total of more than $19.5 billion through False Claims Act cases," including more than $13.9 billion in cases alleging fraud associated with health care programs.

July 30, 2014 in Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Sunday, July 20, 2014

17th Annual Elder Law Institute in Pennsylvania: Packed Program on July 24-25

The growing significance and scope of "elder law" is demonstrated by the program for the upcoming 2014 Elder Law Institute in Philadelphia, Pennsylvania, to be held on July 24-25.  In addition to key updates on Medicare, Medicaid, Veterans and Social Security law, plus updates on the very recent changes to Pennsylvania law affecting powers of attorney, here are a few highlights from the multi-track sessions (48 in number!):

  • Nationally recognized elder law practitioner, Nell Graham Sale (from one of my other "home" states, New Mexico!) will present on planning and tax implications of trusts, including special needs trusts;
  • North Carolina elder law expert Bob Mason will offer limited enrollment sessions on drafting irrevocable trusts;
  • We'll hear the latest on representing same-sex couples following Pennsylvania's recent court decision that struck down the state's ban on same-sex marriages;
  • Julian Gray, Pittsburgh attorney and outgoing chair of the Pennsylvania Bar's Elder Law Section will present on "firearm laws and gun trusts."  By coincidence, I've had two people this week ask me about what happens when you "inherit" guns.

Be there or be square!  (Who said that first, anyway?)     

July 20, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 18, 2014

What Happens to Upfront Fees Paid by Residents of CCRCs -- Especially in Bankruptcy Court?

Last week's news of a Chapter 11 Bankruptcy proceeding in the Texas-based senior living company Sears Methodist Retirement Systems, Inc. (SMRS)  has once again generated questions about "entrance fees" paid by residents at the outset of their move to a Continuing Care Retirement Community (CCRC).  CCRCs typically involve a tiered system of payments, often including a substantial (very substantial) upfront fee, plus monthly "service" fees.  The upfront fee will carry a label, such as "admission fee" or "entrance fee" or even entrance "deposit," depending on whether and how state regulations require or permit certain labels to be used. 

As a suggestion of the significance of the dollars, a resident's key upfront fee at a CCRC operated by SMRS reportedly ranged from $115,000 to $208,000. And it can be much higher with other companies.  So, let's move away from the SMRS case for this "blog" outline of potential issues with upfront resident fees.

Even without talking about bankruptcy court, for residents of CCRCs there can be a basic level of confusion about upfront fees. In some instances, the CCRC marketing materials will indicate the upfront fee is "refundable," in whole or in part, in the event the resident moves out of the community or passes away.  Thus, residents may assume the fees are somehow placed in a protected account or escrow account.  In fact, even if the upfront fee is not "refundable," when there is a promise of "life time care," residents may assume upfront fees are somehow set aside to pay for such care. How the facility is marketed may increase the opportunity for resident confusion. Residents are looking for reassurances about the costs of future care and how upfront fees could impact their bottom line. That is often why they are looking at CCRCs to begin with.  "Refundable fees" or "life care plans" can be important marketing tools for CCRCs. But discussions in the sales office of a CCRC may not mirror the "contract" terms.

One of the most important aspects of CCRCs is the "contract" between the CCRC and the resident. First, smaller "pre move-in" deposits may be paid to "hold" a unit, and this deposit may be expressly subject to an "escrow" obligation.  But,  larger upfront fees -- paid as part of the residency right -- are typically not escrowed. It is important not to confuse the "escrow" treatment of these fees.  Of course, the "hold" fee is not usually the problem.  It is the larger upfront fees --such as the $100k+ fees at SMRS -- that can become the focus of questions, especially if a bankruptcy proceeding is initiated.

The resident's contract requires very careful reading, and it will usually explain whether and how a CCRC company will make any refund of large upfront admission fees.  In my experience of reading CCRC contracts,  CCRCs rarely "guarantee" or "secure" (as opposed to promise) a refund, nor do they promise to escrow such upfront fees for the entire time the payer resides at the CCRC.  In some states  there is a "reserve" requirement (by contract or state law) for large upfront fees whereby the CCRC has a phased right to release or use the fees for its operation costs.  Thus, the contract terms are the starting place for what will happen with upfront fees. 

Why doesn't state regulation mandate escrow of large upfront fees?  States have been reluctant to give-in to pressure from some resident groups seeking greater mandatory "protection" of their upfront fees.  There's often a "free enterprise, let the market control" element to one side of regulatory debates. On the other side, there is the question of whether life savings of the older adult are proper targets for free enterprise theories.  Professor Michael Floyd, for example, has asked, "Should Government Regulate the Financial Management of Continuing Care Retirement Communities?"  

My research has helped me realize how upfront fees are a key financial "pool" for the CCRC, especially in the early years of operation where the developer is looking to pay off construction costs and loans.  CCRCs want -- and often need -- to use those funds for current operations. and debt service.  Thus, they don't want to have those fees encumbered by guarantees to residents. They take the position they cannot "afford" to have that pool of money sitting idle in a bank account, earning minimal interest.  This is not to say the large entrance fees will be "misspent," but rather, the CCRC owners may wish to preserve flexibility about how and when to spend the upfront fees.

The treatment of "upfront fees" paid by residents of CCRCs also implicates questions about application of accounting and actuarial rules and principles. That important topic is worthy of a whole "law review article" -- and frankly it is a topic I've been working on for months. 

In additional to looking for actuarial soundness, analysts who examine CCRCs as a matter of academic interest or practical concern have looked at whether CCRC companies and lenders may have a "fiduciary duty" to older adults/residents, a duty that is independent of any contract law obligations. Analysts further question whether a particular CCRC's marketing or financial practices violate consumer protection or elder protection laws. 

There can also be confusion about what happens during a Chapter 11 process. First, during the Chapter 11 Bankruptcy process, a facility may be able to honor pre-bankruptcy petition "refund" requests or requests for refund of fees for a resident who does not move into the facility.  Second, to permit continued operation as part of the reorganization plan, a facility will typically be permitted by the Court to accept new residents during the Chapter 11 proceeding and those specific new residents will have their upfront fees placed into a special escrow account, an account that cannot be used to pay the pre-petition debts of the company. 

But what about the upfront fees already paid pre-petition by residents who also moved in before the bankruptcy petition?  Usually those upfront fees are not escrowed during the bankruptcy process.  Indeed, other "secured" creditors could object to refunds of "unsecured" fees. The Bankruptcy Court will usually issue an order -- as it did in SRMS's bankruptcy court case in Texas last week -- specifying how current residents' upfront fees will be treated now and in the future.  A bit complicated, right?  (And if I'm missing something please feel free to comment.  I'm always interested in additional viewpoints on CCRCs.  Again, the specific contract and any state laws or regulations governing for handling of fees will be important.)

Of course, this history is one reason some of us have been suggesting for years that prospective residents should have an experienced  lawyer or financial consultant help them understand their contracts and evaluate risks before signing and again in the event of any bankruptcy court proceeding. "Get thee to a competent advisor."   See also University of New Mexico Law Professor Nathalie Martin's articles on life-care planning risks and bankruptcy law. 

As I mentioned briefly in writing last week about the SMRS Chapter 11 proceeding, CCRC operators have learned -- especially after the post-2008 financial crisis -- that the ability of a CCRC to have a viable "second chance" at success in attracting future residents will often depend on the treatment of existing residents. Thus, one key question in any insolvency will be whether the company either (a) finds a new "owner" during the Chapter 11 process or (2) is able to reorganize the other debts, thereby making it possible for the CCRC company to "honor" the resident refund obligations after emerging from the Chapter 11 process.

During the last five years we have seen one "big" default on residents' upfront. refundable entrance fees during the bankruptcy of Covenant at South Hills, a CCRC near Pittsburgh.  A new, strong operator eventually did take over the CCRC, and operations continued. However, the new operator did not "assume" an obligation to refund approximately $26 million in upfront fees paid pre-petition by residents to the old owner. In contrast, Chapter 11 proceedings for some other CCRCs have had "gentler" results for residents, with new partners or new financial terms emerging from the proceedings, thereby making refunds possible as new residents take over the departed residents' units. 

For more on how CCRC companies view "use" of upfront fees, here's a link to a short and clear discussion prepared by DLA Piper law firm, which, by the way, is the law firm representing the Debtor SMRS in the Texas Chapter 11 proceeding. 

June 18, 2014 in Consumer Information, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)

Monday, June 16, 2014

Why Expanded Opportunities for Legal Immigration Are Important to Long-Term Care Providers...

Recently Artis Senior Living CEO Don Feltman joined CEOs from 10 other high profile corporate employers, such as Coca-Cola, Tyson Foods, and Loews Hotels & Resorts, to urge Congress to fix the "broken" immigration system, to permit expanded lawful avenues for foreign-born workers in the U.S.   In their June 10 letter, they write in part:  

All our companies rely on legal immigrants working alongside Americans to keep our businesses growing and contributing to the economy. This is a reality driven by demographics. In 1950, more than half of America’s workers were high school dropouts willing to do physically demanding, low-skilled work. Today, the figure is less than 5 percent. But our businesses still need less-skilled workers – and the need will only grow in years ahead. Baby boomers are retiring: 10,000 older workers are leaving the workforce every day. And after a long downturn, most of our operations are expanding and looking to hire workers.

 

The problem: there is virtually no legal way for less-skilled foreigners without family in the U.S. to enter the country and work in year-round jobs – effectively no temporary or permanent visas available for non-seasonal workers. Congress has an obligation to fill this gap – we need a visa program for less-skilled foreign workers seeking year-round jobs. Employers should have to try to hire Americans first. But if they can’t find enough U.S. workers, they should be able to hire foreign workers quickly, easily and legally.

June 16, 2014 in Federal Statutes/Regulations, Health Care/Long Term Care, Housing | Permalink | Comments (1) | TrackBack (0)

Monday, June 9, 2014

What is the Role of the Judiciary in Settlement of Medicare Provider-Fraud Cases?

Last week, the Second Circuit Court of Appeals ruled that a district court's rejection of a proposed Securities and Exchange Commission (SEC) settlement for $285 million -- because of the absence of any admissions by defendant Citigroup -- was improper.  In SEC v. Citigroup Global Markets, a case that arose from investigations into fraud following the financial industries meltdown, the Second Circuit observed that while the court has an obligation to review consent degrees to determine generally the "legality" of the terms and may consider whether the settlement is "fair and reasonable, to demand admissions as a condition of settlement goes too far. 

The Second Circuit said, "It is an abuse of discretion to require, as the district court did here, that the S.E.C. establish the 'truth' of the allegations against a settling party as a condition for approving the consent decrees.... Trials are primarily about the truth. Consent decrees are primarily about pragmatism.... Consent decrees provide parties with a means to manage risk." 

In cases where injunctive relief is part of the settlement, the Second Circuit said the trial court is permitted to analyze the enforceability of the terms, as a matter of "public interest." 

The Wall Street Journal, in reporting on the June 4 decision, observed that the decision "eases pressure" on prosecutors and regulators "to exact admissions of wrongdoing in settlements with companies."

After reading the SEC-related decision, it would seem the same reasoning would govern settlements of federal Medicare and Medicaid fraud suits, including whistleblower cases, such as the multi-million dollar settlements in recent months involving nursing home care, pharmaceutical sales, and hospice, thus explaining how millions in de facto fines often involve no admissions of wrongdoing. 

Or as I sometimes describe such agreements to settle, defendants must decide whether they can live with the financial effect of the monetary terms, and must promise merely to never do again what they say they never did before. 

But I worry, will customers -- which in Medicare and Medicaid cases, usually means seniors and disabled persons -- be the ones who pay the downstream price of the settlement, especially without clear admissions of wrongdoing in the past?  

June 9, 2014 in Ethical Issues, Federal Cases, Federal Statutes/Regulations, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Friday, June 6, 2014

Center for Medicare Advocacy files suit against HHS for Medicare appeals problems

The Center for Medicare Advocacy’s 'Rubber Stamp' suit highlights the fact that 98% of Medicare appeals are denied at the first two levels of review

June 5, 2014 – The Center for Medicare Advocacy filed a complaint in United States District Court in Connecticut yesterday against Kathleen Sebelius, Secretary of Health and Human Services, on behalf of plaintiffs who have been denied a meaningful review of their Medicare claims at the first two levels of appeal. The case was brought as a class action, and the four named plaintiffs represent thousands of Medicare beneficiaries in Connecticut who cannot get a meaningful review of their case, and instead, receive an initial denial of coverage that is essentially “rubber stamped” at both the Redetermination and Reconsideration levels. The problem persists throughout the country.

Available information indicates that the combined denial rate for home health care coverage (that the plaintiffs in this case were denied) at the first two levels of review is about 98%.  However, beneficiaries must complete those levels before they can get a hearing with an Administrative Law Judge (ALJ), which provides the first real opportunity for a meaningful evaluation of a claim.

"Older people and people with disabilities are going without necessary care because they’re being wrongly denied coverage and either drop out of the years-long appeals process, waiting for a hearing, or impoverish themselves to pay for care,” said Gill Deford, Litigation Director at the Center for Medicare Advocacy. “The sheer number of beneficiaries who are forced to deal with this time-consuming, meaningless appeals structure compelled us to take action to seek meaningful reviews earlier in the appeals process."

The denial rate at Redetermination and Reconsideration has been increasing in recent years, coinciding with the implementation of a new administrative review process for "traditional" Medicare (Parts A and B). While the new system was intended to make the process more efficient and user-friendly, the actual effect has been to deny beneficiaries an efficient and meaningful review of their claims, requiring them to take claims to the third level of review, an ALJ hearing.

"Most beneficiaries don’t have the resources, time or support to take their claims all the way to an Administrative Law Judge, making the first two levels of review vitally important,” said Judith Stein, Executive Director of the Center for Medicare Advocacy. "'Rubber-stamping' appeals deprives a huge number of people a legitimate review process and harms those who depend on Medicare coverage for critical health care and to maintain their quality of life."

To speak with a representative of the Center for Medicare Advocacy about this case, please contact Lauren Weybrew at lweybrew@douglasgould.com

June 6, 2014 in Federal Statutes/Regulations, Medicare | Permalink | TrackBack (0)

Sunday, June 1, 2014

Minnesota News: Court order approves Jensen Compehensive Plan of Action

On March 12, 2014, U.S. District Judge Donovan Frank of the District of Minnesota issued a court order adopting and approving the Comprehensive Plan of Action for the Jensen Settlement Agreement. The agreement was the result of a lawsuit filed against DHS in 2009 alleging that residents of the former Minnesota Extended Treatment Options (METO) program were unlawfully and unconstitutionally secluded and restrained. The Comprehensive Plan of Action outlines the path that the department will take to come into compliance with the terms of the agreement.

The Minensota DHS says that it is actively working to implement the plan and other mandates of the federal court, including departmentwide training on the agreement and plan.

The Jensen Settlement Agreement, approved Dec. 5, 2011, allowed the department and the plaintifs to resolve the claims in a mutually agreeable manner.

More information is on the Jensen Settlement page on DHS' website.

 

June 1, 2014 in Cognitive Impairment, Discrimination, Federal Cases, Federal Statutes/Regulations | Permalink | TrackBack (0)

Saturday, May 31, 2014

Representatives introduce Medicare Transitional Care Act

Representatives Earl Blumenauer (OR-03) and Tom Petri (WI-06) ihave recently ntroduced the bipartisan Medicare Transitional Care Act, which will support and coordinate care for Medicare beneficiaries as they move from the hospital setting to their homes or other care setting, and ensure that appropriate follow-up care is provided during this vulnerable period.  The benefit is flexible, supporting a number of much-needed care models including improved assessment, planning, medications management, movement between care levels, and coordination of support services such as meals and medical equipment.
 
“Transitions from hospital to home can be complicated and risky, especially for individuals with multiple chronic illnesses,” said Blumenauer. “There’s a lot of confusion and uncertainty over instructions, medications, and prognosis. Our bill will support people coming out of the hospital so they don’t just wind up right back in, which is expensive and dangerous.”
 
“It doesn’t make sense to have a program that only provides part of the care Medicare patients need just to have them become sick again as soon as they leave the hospital,” said Petri.  “Providing greater support for Medicare patients as they transition from the hospital back home would improve their health and quality of life while saving taxpayers’ money.”
 
“As providers seek to improve patient outcomes through more coordinated care, Congress must continue to look for effective policies that address gaps in care for our most vulnerable patients, and improving transitions between care settings is critical to that effort,” said National Transitions of Care Coalition Executive Director, Cheri Lattimer. “The Medicare Transitional Care Act puts in place necessary infrastructure and incentives to foster care transition interventions, with collaborative team approaches that have proven successful, which will lead to better health outcomes for beneficiaries and offer real cost savings for patients, the health care system and taxpayers.”
 
Researchers with the Robert Wood Johnson Foundation have estimated that inadequate care coordination, including inadequate management of care transitions, was responsible for $25 to $45 billion in wasteful spending in 2011 through avoidable complications and unnecessary hospital readmissions.
 
The Medicare Transitional Care Act is supported by organizations including The National Transitions of Care Coalition, American Society of Aging, Caregiver Action Network, Case Management Society of America, Society for Post-Acute and Long-Term Care Medicine, Hudson Health Plan, Rush University Medical Center, and Sanofi.
 

May 31, 2014 in Federal Statutes/Regulations, Medicare | Permalink | TrackBack (0)

Friday, May 30, 2014

ACL issues guidance memo implementing Windsor

In May 2014, the Administration for Community Living (ACL), an agency within the Department of Health and Human Services,  issued guidance applicable to all ACL grantees concerning the federal government's policy on same-sex marriages following the Supreme Court Decision in  United States v. Windsor, 133 S. Ct. 2675 (2013).  The Court in Windsor found that Section 3 of the Defense of Marriage Act (DOMA) impermissibly discriminates against same-sex couples who have been lawfully married in accordance with the laws of a given state.
According to its guidance, the policy of the ACL is to treat same-sex marriages the same as opposite sex marriages to the "extent reasonably possible."  In this regard ACL sets out the following:

  • ACL programs should recognize as family members individuals of the same sex who are lawfully married under the law of a state, territory, or foreign jurisdiction. This policy applies based on the jurisdiction in which the marriage was celebrated.
  • ACL will recognize the marriage, regardless of whether the individuals are domiciled or reside in a state or territory that does not recognize the marriage.
  • When the ACL guidance discusses individuals of the same sex who are "legally married," the intention is to include all legal marriages, regardless of the individuals' current domicile or residence.

Programs affected by the ACL policy include (a) The Administration on Intellectual and Developmental Disabilities; (b) State Protection and Advocacy Systems under the Developmental Disabilities Act ("DD Act"), including their governing boards and advisory councils; (c) the National Network of University Centers for Excellence in Developmental Disabilities; (d) Projects of National Significance, including projects made through grants, contracts, or cooperative agreements; (e)  Help America Vote Act Protection and Advocacy Systems; (f) Home Delivered Nutrition Services; and (g)  the National Family Caregiver Support Program,
To the extent necessary, ACL states that it will revise its grant terms and conditions to incorporate its guidance.  The ACL's full Windsor-related guidance is available at: http://www.acl.gov/Funding_Opportunities/Grantee_Info/docs/
Community_Living_Guidance.pdf
.

May 30, 2014 in Federal Statutes/Regulations, Other | Permalink | TrackBack (0)

Tuesday, May 20, 2014

Justice Dep't Announces ADA Title II Settlement with LSAC

The Justice Department filed a joint motion today for entry of a landmark consent decree to resolve allegations that the Law School Admission Council (LSAC) engaged in widespread and systemic discrimination in violation of the Americans with Disabilities Act (ADA). Under the proposed consent decree, LSAC will pay $7.73 million in penalties and damages to compensate well over 6,000 individuals nationwide who applied for testing accommodations on the Law School Admission Test (LSAT) over the past five years. The decree also requires comprehensive reforms to LSAC’s policies and ends its practice of “flagging,” or annotating, LSAT score reports for test takers with disabilities who receive extended time as an accommodation. These reforms will impact tens of thousands of test takers with disabilities for years to come.

More here.

May 20, 2014 in Discrimination, Federal Statutes/Regulations, Legal Practice/Practice Management | Permalink | TrackBack (0)

Friday, May 16, 2014

U.S. Equal Employment Opportunity Commission Seeks Public Input on Regulations Requiring Federal Agencies to Be ‘Model Employers’ of Individuals with Disabilities

The U.S. Equal Employment Opportunity Commission announced today that it is inviting public input on potential revisions to the regulations implementing Section 501 of the Rehabilitation Act of 1973, a law that governs employment of individuals with disabilities by the federal government. 

Responses to this Advance Notice of Proposed Rulemaking must be submitted by 5:00 pm EDT on Monday, July 14, 2014.

May 16, 2014 in Discrimination, Federal Statutes/Regulations | Permalink | TrackBack (0)