Tuesday, April 15, 2014

Social Security Administrators Announce Cessation of "Old Debt" Collection Intercepts

The Social Security Administration announced on Monday that it is halting its practice of "Treasury Offsets" to recover debts reported to be 10 years or older.  This decision comes just three days after the Washington Post's front page account of intercepts that targeted IRS income tax refunds going to children of alleged debtors. As reported in today's Washington Post: 

“"I have directed an immediate halt to further referrals under the Treasury Offset Program to recover debts owed to the agency that are 10 years old and older pending a thorough review of our responsibility and discretion under the current law,' the acting Social Security commissioner, Carolyn Colvin, said in a statement.

 

Colvin said anyone who has received Social Security or Supplemental Security Income benefits and 'believes they have been incorrectly assessed with an overpayment' should contact the agency and 'seek options to resolve the overpayment.'”

The Washington Post reported that after its first article, "many hundreds of taxpayers whose refunds had been intercepted came forward and complained to members of Congress that they had been given no notice of the debts and that the government had not explained why they were being held responsible for debts that their deceased parents may have incurred." 

Hmm.  It seems that it is the intercept notice procedures that may be the focus of reexamination by the SSA, rather than giving up on the authority granted by Congress in 2008 to recover "stale" debts.  Plus, it is unclear whether SSA will  explain its theory for seeking recoveries against children of debtors.  

April 15, 2014 in Federal Cases, Federal Statutes/Regulations, Medicaid, Social Security | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 2, 2014

Professor Jonathan Barry Foreman: Responding to "Longevity Risk"

Prof. Jonathan Barry ForemanUniversity of Oklahoma Professor of Law Jonathan Barry Foreman writes on "Supporting the Oldest Old: The Role of Social Insurance, Pensions, and Financial Products," for the Elder Law Journal in 2014. 

He points to "longevity risk," defined as the risk of outliving one's retirement savings, as "probably the greatest risk facing current and future retirees" in the U.S.   As  several recent studies demonstrate, such as those cited on the Elder Law Prof Blog  here, here and here, many people are not adequately prepared in terms of finances for retirement. 

In responding to this risk, Professor Foreman writes thoughtfully, proposing  systemic alternatives, including expansion of Social Security and SSI for "the oldest old."  Professor Foreman suggests 90 years of age as the starting point for that category.  In addition he proposes greater incentives for public and private employers to promote annuities and other "lifetime income products" as components of employment-based retirement packages. 

He concludes with a warning based on our national history of frequently failing to make significant changes in advance of a predictable crisis:

"Social insurance programs like Social Security, Supplemental Security Income, and Medicaid will certainly need to be expanded. Workers will also need to be encouraged to work longer and save more for their eventual retirements, and both workers and retirees should be encouraged to annuitize more of their retirement savings.

 

While these kinds of solutions seem fairly predictable, the answers to two important policy questions have yet to be decided. First, how much will the government require the oldest old to save earlier in their lives? And second, how much will the government redistribute to benefit the oldest old? Unfortunately, if the history of the Social Security system is any indication, both government mandates and redistribution will be modest, and a significant portion of the oldest old will face their final years with inadequate economic resources."

Reading Professor Foreman's tightly focused paper suggests to me that there is, perhaps, a certain irony to all of this.  The irony is that by not embracing systemic change, Americans are engaging in a form of financial roulette, betting we won't live long enough to care about the outcome of our gamble. 

April 2, 2014 in Consumer Information, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Social Security, Statistics | Permalink | Comments (0) | TrackBack (0)

Monday, March 31, 2014

Downstream Consequences of Under-the-Table Pay for Elder Care

A few weeks ago, I posted the account of one family's struggle to find competent care for aging parents.  Eventually they were referred to a team of two women who did provide good care, but who insisted on being paid in cash.  I later learned that one person expected an additional "fee" for "managing" the arrangement.  The family felt trapped, although the crisis was cut short when the parent died. 

More recently, I read another family's story, where a non-family member provided proper senior care in exchange for "cash," and this time the arrangement lasted for several years.  Eventually, however, the cared-for-individual's savings were exhausted, and her increasing health needs meant a nursing home was inevitable.  But how to apply for Medicaid?  Any review of bank records that accompanies a Medicaid application would show large, regular cash withdrawals from the elder's accounts, totaling more than two hundred thousand dollars.  With no W-2s or other documentation of the use of that cash, would the state agency treat the transactions as gifts creating ineligibility for Medicaid?  Would an affidavit or testimony by a family member be enough to satisfy the agency?

A group of experienced attorneys brainstormed the options in this fact pattern and raised a host of additional practical questions, including why the family had not sought help from an attorney or accountant at the outset of the arrangement. I suspect part of the answer was the family was operating in "survival" mode -- trying to solve a crisis with temporary help -- and failing to realize the potential for it to become long-term.  In the meantime, their loved one bonded with the individual caregiver who either would not or could not be paid on the books.  One lawyer observed that this fact pattern demonstrates why "Elder Law" needs better visibility and understanding by the public, as elder law attorneys can help prevent this legal nightmare from occurring.

During the brainstorming, someone provided a useful link to "Risks of Hiring Caregivers Under the Table: Why It Can Be Dangerous...." by Melanie Haiken from Caring.com.

For more detailed guidance, IRS Publication 926, the Household Employer's Tax Guide, is remarkably straight forward, if still probably intimidating for the average person. 

March 31, 2014 in Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (1) | TrackBack (0)

Saturday, March 29, 2014

Department of Labor Offers Guidance on FLSA and Shared Living Arrangements

The Department of Labor recently posted a Final Rule that changes how the Fair Labor Standards Act is interpreted for domestic service.  Of special interest is how the Rule impacts shared living programs under Medicaid.

The Department of Labor has also created guidance to assist stakeholders in determining whether an entity paying a direct care worker through a shared living arrangement is required to comply with the FLSA’s minimum wage and overtime requirements. The guidance also describes how certain FLSA principles apply to shared living arrangements. 

These changes become effective January 1, 2015.

March 29, 2014 in Federal Statutes/Regulations, Housing, Medicaid | Permalink | TrackBack (0)

Thursday, March 20, 2014

Nursing Home Admissions Agreements: A Discussion of the Unfair Terms in the Agreements Presented to Elders on Entering a Nursing Hom

Join the National Consumer Law Center for a Webinar on April 2
Space is limited.
Reserve your Webinar seat now here.

Elders often enter nursing homes during some of the most trying times of their lives (emotionally and financially).  Unfortunately, many nursing homes take advantage of these vulnerabilities by inserting unfair terms in their admissions agreements or convincing family members or others to assent to such agreements even though they often lack the authority to do so.  Our webinar will focus on nursing home admissions agreements, identifying the terms that elders and their advocates should be most wary of and explaining the protections that some states afford against enforcement of some of these terms.  Though the webinar will cover a range of issues, we will focus on arbitration clauses, attempts to hold family members liable for a resident’s bills, purported waivers of a facility’s liability, and improper grounds for eviction.

Presenters:  Eric Carlson, Directing Attorney, National Senior Citizens Law Center and David H. Seligman, Irving Kaufman Fellow, National Consumer Law Center.

Additional sponsorship for this Webinar is provided by a grant from the Administration on Aging/Administration for Community Living .  This webinar is part of a series of National Elder Rights Training Project webinars for the National Legal Resource Center.

There is no charge for this webinar.
All time listings are in Eastern Standard Time.
If you have any questions email trainings@nclc.org
Title:     Nursing Home Admissions Agreements: A Discussion of the Unfair Terms in the Agreements Presented to Elders
Date:     Wednesday, April 2, 2014
Time:     2:00 PM - 3:30 PM EDT
After registering you will receive a confirmation email containing information about joining the Webinar.

March 20, 2014 in Federal Statutes/Regulations, Programs/CLEs, Webinars | Permalink | TrackBack (0)

Tuesday, March 18, 2014

Professor Donna Harkness: "What Are Families For? Re-evaluating Return to Filial Responsibility Laws"

Donna_HarknessDonna Harkness, clinical professor of law and director of the Elder Law Clinic at the University of Memphis Cecil C. Humphries School of Law, has a new article on filial support laws in the most recent issue of the University of Illinois's Elder Law Journal.  In "What Are Families For? Re-valuating Return to Filial Responsibilities Laws,"  she concludes: 

"Despite their long history, filial responsibility laws have clearly failed to remedy existing needs. The lack of uniformity in filial responsibility laws, the difficulty and cost of enforcement, along with the fact that such laws provide no coverage to those elder Americans that have no adult children to look to for support, render them a limited response at best. In addition, to the extent that filial responsibility laws are enforced, evidence indicates they would be destructive to family ties and have the counterproductive effect of further eroding and destabilizing the network of support available to elders.

 

Furthermore, by focusing solely on economic support, filial responsibility laws do not address the fundamental need that all persons, and most especially the vulnerable elderly, have to be supported by caring relationships. To the extent that the institution of the family, however defined, is the key to ensuring that such relationships exist, it behooves us as a society to strengthen and foster family ties through policy initiatives that reward caring relationships."

 

March 18, 2014 in Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)

Justice Dep't announces ADA Title II settlement with Blair Co., PA

The Justice Department has announced a settlement under Title II of the Americans with Disabilities Act (ADA) with Blair County, Pa., to greatly improve physical accessibility at the county’s polling places for individuals who use wheelchairs and other mobility aids and for individuals who are blind or have vision impairments.  The settlement agreement resolved an ADA title II complaint that the County’s polling places were not accessible.  The agreement requires the County to provide polling places that are accessible to voters with mobility disabilities and voters who are blind or have vision impairments. 

Find out more about this settlement agreement here.

March 18, 2014 in Discrimination, Federal Cases, Federal Statutes/Regulations | Permalink | TrackBack (0)

Monday, March 17, 2014

Student Comment on Expansion of Medicaid Estate Recovery

From 3L student Katie L. Summers at my own law school, Penn State Dickinson,  a recently published Penn State Law Review comment titled "Medicaid Estate Recovery: To Expand, or Not to Expand, That is the Question."  Here is a taste, from the abstract:

"To recoup some of the costs of Medicaid, the states are required to implement a Medicaid estate recovery program.  There are certain mandated requirements, but the reach of the recovery program is primarily left to the discretion of the states.  Pennsylvania recently contemplated expanding its Medicaid estate recovery program, but the proposed changes were not enacted.  This Comment provides an overview of Medicaid estate recovery in Pennsylvania by exploring the background of Medicaid, Medicaid estate planning, and Medicaid estate recovery generally.  In addition, this Comment examines the arguments for and against Medicaid estate recovery.  Finally, this Comment recommends the creation of a system that expands Medicaid estate recovery in Pennsylvania, while retaining certain protections for the deceased Medicaid recipient’s heirs."

March 17, 2014 in Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management | Permalink | Comments (0) | TrackBack (0)

Thursday, March 13, 2014

Senators Take Aim At SSI Asset Limits

Via Disability Scoop:

Under a new bill proposed in the U.S. Senate, the amount of money that Supplemental Security Income recipients could save without losing access to their benefits would rise for the first time in over two decades. Currently, individuals who receive SSI can have no more than $2,000 in cash or liquid assets at any given time without forfeiting their eligibility for benefits. The legislation, introduced late last week, calls for that asset limit to increase to $10,000. The bill would also eliminate restrictions that currently disallow friends and family from providing financial, food and housing support to those receiving SSI and the measure would boost the amount of income beneficiaries could earn without losing out on benefits.

“SSI is a critical program that helps millions of our poorest and most vulnerable citizens keep their heads above water,” said U.S. Sen. Elizabeth Warren, D-Mass., who proposed the bill along with Sen. Sherrod Brown, D-Ohio. Warren said the legislation would “help strengthen SSI for families who rely on these essential benefits.” More than 8 million Americans — including many with disabilities — draw on SSI. Currently, the maximum federal benefit for an individual receiving SSI is $721 per month, though many states tack on additional funding for their residents meaning that actual payments can be somewhat higher. The last time the asset cap for SSI recipients was increased was in 1989, the senators said.

Source/more.

Read the legislation: Supplemental Security Income Restoration Act of 2014

March 13, 2014 in Federal Statutes/Regulations, Housing, Social Security | Permalink | TrackBack (0)

Thursday, February 20, 2014

"Outside" Whistleblower in Senior Care Industry to Receive $5.7 Million

In a previous post, I reported on a senior care whistleblower case, where a court ruled that a former corporate officer, who was also the in-house counsel, cannot participate in a False Claims Act suit, if the information supporting the claim comes from privileged communications received in his role as an attorney.  The two other former executives of the company, non-lawyers, could have participated as qui tam plaintiffs; however the entire case was dismissed by the court as a sanction for improper disclosure of attorney-client privileged information.

Most whistleblowers are insiders, either current or former employees; however, that is not always true.  The "relator" (that's False-Claim-Act-speak for whistleblower) in a suit brought against RehabCare, Rehab Systems, and Health Systems, Inc. was the CEO of a competitor, Health Dimensions Rehabilitation, Inc., who first heard about a successful use of "referral fees" during a public conference call hosted by RehabCare. 

 "Pride goeth before a fall," as our mothers might say.  In this case, the CEO's research into the referral fees resulted in allegations the fees were intended to generate referrals of clients covered by Medicare and Medicaid, thus giving rise to alleged violations of the federal Anti-Kickback Act.  The defendants denied all allegations. 

In the RehabCare case, which settled earlier this year for a reported $30 million, the whistleblower, Health Dimensions Rehabilitation, Inc. is in line to receive about $5.7 million from the settlement, according to the U.S. Justice Department. 

Penn State Dickinson School of Law is hosting a half-day program examining "Whistleblower Laws in the 21st Century," on March 20, 2014Speakers include both academic scholars and experienced attorneys who have advised or represented parties in False Claims Act cases in health care, including "senior care." 

February 20, 2014 in Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 18, 2014

National Council on Aging Offers 5 Ways Congress Can Help Seniors

The National Council on Aging identifies five ways that Congress -- if it could get its act together -- can help seniors in 2014:

  1. Restore funding and modernize aging services, beginning with revitalization of the Older Americans Act, once the central legislation for a national approach to basic safeguards;
  2. Protect low-income Medicare beneficiaries, by securing the viability of  the Medicare Qualified Individual (QI) program, aimed at helping low income individuals (those with incomes between $13,700 and $15,300) take part in Medicare Part B, key to insurance coverage for doctor's visits.
  3. Renew the Farm Bill, including the Supplemental Nutritional Assistance Program (SNAP) to help needy seniors obtain healthy food, a program that in the past has been important to as many as 4 million older adults, as well as younger persons facing food insecurity.
  4. Introduce long-term care legislation -- that focuses on the very real needs for daily assistance (long term "services and supports") , beyond "mere" health care.
  5. Pass immigration reform -- necessary to provide the work force to cope with the predicted needs for care and assistance to aging boomers.

February 18, 2014 in Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Monday, February 17, 2014

DOJ says state bar committees may be violating ADA with mental-health inquiries

Via the ABA Journal:

Asking would-be lawyers standard questions about their mental health, including their history of diagnosis and treatment, could violate the Americans with Disabilities Act, according to the civil rights division of the U.S. Department of Justice.  In a lengthy Feb. 5 letter (PDF) to the Louisiana Supreme Court, its committee on bar admissions and the state attorney disciplinary board that is likely to reverberate throughout the country, the division says some, but not all, of the questions asked in a standard National Conference of Bar Examiners questionnaire are unduly broad and violate the ADA. The DOJ also found that the state violates the ADA in evaluating bar applications from individuals with a history of mental health issues and admitting them to practice conditionally.

Read more.

 

February 17, 2014 in Discrimination, Federal Statutes/Regulations, Legal Practice/Practice Management | Permalink | TrackBack (0)

Thursday, February 13, 2014

Proposal To Change Medicare's 'Observation Status' Gains Congressional Support

Via Kaiser Health News and sources referenced therein:

After years of trying, Rep. Joe Courtney, D-Conn., says he is optimistic that Congress will change the Medicare policy that has left thousands of patients without coverage for nursing home care after leaving the hospital.

The CT Mirror: After years of trying, U.S. Rep. Joe Courtney, D-2nd District, said Tuesday he’s optimistic that Congress will take action to address a technicality that has left thousands of Medicare patients without coverage for nursing home care after leaving the hospital. At issue is how Medicare treats patients designated by hospitals as being on “observation status.” Medicare’s hospitalization benefit covers nursing home care for patients recovering from a hospital stay, if they have spent at least three consecutive days as inpatients in a hospital. But increasingly, hospitals have been designating patients as being on observation status, even if they receive inpatient care and spend several nights in the hospital (Becker, 2/11).

CQ HealthBeat: As Rep. Joe Courtney, D-Conn., sees it, more of his colleagues are becoming aware of the ill effects that can occur when hospitals tell Medicare that a person who spent days being treated within their walls was not an “inpatient.” Courtney and many advocacy groups say that when hospitals instead slot patients as receiving “observation” services, that can deprive them of needed follow-up skilled nursing care. Or, it can cost them dearly if they use these services as after a hospital stay (Young, 2/11).

Read more here.

For lots of great information on the observation status issue, visit the Center for Medicare Advocacy's observation status resource area

February 13, 2014 in Federal Cases, Federal Statutes/Regulations, Medicare | Permalink | TrackBack (0)

Wednesday, February 12, 2014

President will sign Executive Order raising minimum wage for government contracts--including for those with disabilities

FACT SHEET - Opportunity For All: Rewarding Hard Work

 

Raising the Minimum Wage through Executive Order to $10.10 for Federal Contract Workers

& Calling on Congress to Finish the Job for All Workers by Passing the Harkin-Miller Bill

 

Today, continuing to fulfill his promise to make 2014 a year of action, the President will sign an Executive Order to raise the minimum wage to $10.10 for federal contract workers.

 

The Executive Order the President will sign today will benefit hundreds of thousands of people working under contracts with the federal government who are making less than $10.10 an hour. It will also improve the value that taxpayers are getting from the federal government’s investment. Studies show that boosting low wages will reduce turnover and absenteeism, while also boosting morale and improving the incentives for workers, leading to higher productivity overall. These gains improve the quality and efficiency of services provided to the government.

 

In his State of the Union Address, President Obama pledged to both take executive action wherever he can and work with Congress to increase opportunity for all Americans. Consistent with that pledge, the President will continue to work with Congress to finish the job to raise the minimum wage for all Americans and pass the Harkin-Miller bill so that all workers can be paid at least a $10.10 minimum wage. 

 

Details of the Executive Order

 

Ø  The Executive Order will raise the minimum wage to $10.10 effective for new contracts beginning January 1, 2015.   The higher wage will apply to new contracts and replacements for expiring contracts.  Boosting wages will lower turnover and absenteeism, and increase morale and productivity overall. Raising wages for those at the bottom will improve the quality and efficiency of services provided to the government.

Ø  Benefits hundreds of thousands of hardworking Americans. There are hundreds of thousands of people working under contracts with the federal government to provide services or construction who are currently making less than $10.10 an hour.  Some examples of the hardworking people who would see their wages go up under this Executive Order include nursing assistants providing care to our veterans at nursing homes, concessions workers in National Parks, people serving food to our troops, and individuals with disabilities working to maintain the grounds on military bases.

Ø  Includes an increase in the tipped minimum wage.  This executive order also includes provisions to make sure that tipped workers earn at least $10.10 overall, through a combination of tips and an employer contribution.  Employers are currently required to pay a minimum base wage of $2.13 per hour, a base that has remained unchanged for over twenty years, and if a worker’s tips do not add up to the minimum wage, the employer must make up the difference. Under the Executive Order, employers are required to ensure that tipped workers earn at least $10.10 an hour.  The Executive Order requires that employers pay a minimum base wage of $4.90 for new contracts and replacements for expiring contracts put out for bid after January 1, 2015.  That amount increases by 95 cents per year until it reaches 70 percent of the regular minimum wage, and if a worker’s tips do not add up to at least $10.10, the employer will be required to pay the difference.   

Ø  Covers individuals with disabilities.  Under current law, workers whose productivity is affected because of their disabilities may be paid less than the wage paid to others doing the same job under certain specialized certificate programs. Under this Executive Order, all individuals working under service or concessions contracts with the federal government will be covered by the same $10.10 per hour minimum wage protections.   

Ø  Improves value for the federal government and taxpayers.  One study showed that when Maryland passed its living wage law for companies contracting with the state, there was an increase in the number of contractors bidding and higher competition can help ensure better quality. The increase will take effect for new contracts and replacements for expiring contracts put out for bid after the effective date of the order, so contractors will have time to prepare and price their bids accordingly.

 

More info here.

February 12, 2014 in Discrimination, Federal Statutes/Regulations, Other | Permalink | TrackBack (0)

Tuesday, February 4, 2014

Feds Announce An Inter-Agency Enforcement Effort between the Department of Justice and the Department of Labor re Employment of Persons with Disabilities

Across the nation, people with disabilities are often excluded from the middle class and from accessing real jobs in their communities. Instead, they are often segregated in sheltered workshops where they work alongside only other people with disabilities and earn far less than minimum wage. The U.S. Department of Justice (DOJ), Civil Rights Division, is working to enforce the Americans with Disabilities Act (ADA), which ensures that individuals with disabilities have access to the services and supports they need to have the opportunity to work in real jobs in the community, rather than just in segregated settings.

  • In June 2013, DOJ entered into an Interim Settlement Agreement with the State of Rhode Island and the City of Providence, resolving the kinds of violations that result in Americans with disabilities spending their days in segregated employment.  DOJ worked collaboratively with the Wage and Hour Division of the U.S. Department of Labor (DOL) in a first-of-its-kind enforcement effort between the agencies to achieve relief for adults and youth with disabilities.
  • DOL recently announced that it has secured more than $250,000 in back wages for student workers with disabilities who spent their days in a school-based sheltered workshop in Providence, where they were routinely paid less than $2 an hour, if at all, in violation of the Fair Labor Standards Act (FLSA).

Together, DOJ and DOL are working to ensure that, under the ADA and FLSA, Americans with disabilities receive the protections they are entitled to.

Read the DOL press release.

 

February 4, 2014 in Discrimination, Federal Statutes/Regulations | Permalink | TrackBack (0)

Monday, February 3, 2014

Surprisingly Unlimited Statutes of Limitation and Whistleblower Suits

As readers of this blog will recognize, whistleblower-triggered suits alleging fraud in Medicare and Medicaid are big business. 

The February 2014 issue of The Washington Lawyer, published by the D.C. Bar, has a fascinating article written by Joshua Berman, Glen Donath, and Christopher Jackson, two of whom are former federal prosecutors.  In "A Casualty of War: Reasonable Statute of Limitation Periods in Fraud Cases," they outline modern use -- perhaps misuse -- of the Wartime Suspension of Limitations Act (WSLA), originally enacted in the 1940s. 

Beginning in 2008, the statute, and a more recent tweak under the Wartime Enforcement of Fraud Act (WEFA), has become a key tool of the Department of Justice in pursuing arguably "stale" claims of fraud.  The original provision "tolls" the statute of limitation for such claims until three years after the termination of hostilities for "virtually any kind of fraud in which the United States has been the victim."  The 2008 provision, changing the three-year extension to five-years, also "simultaneously broadened the circumstances in which the WSLA's tolling provision is triggered and narrowed the circumstances in which the 'war' can be said to have ended." The result is potentially unlimited periods within which to file suit.  The authors explain:

"Now, under the post-amendment WSLA, virtually any congressional authorization for the use of military force -- such as that which was approved by Congress prior to the wars in Afghanistan and Iraq and also recently contemplated with regard to Syria -- will trigger the statute. But only a formal proclamation by the president, with notice to Congress, or a concurrent resolution of Congress will suffice to end the 'war' and resume the running of the five-year clock under the original limitations period."  

The authors point out that during World War II, it was "understandable and desirable that the government be given flexibility to bring cases that would otherwise become stale."  But the effect of the WLSA is not limited to fraud claims against war-related industries such as defense contractors.  The authors critique application beyond the original justification of wartime, to Social Security fraud or False Claims Act violations, the latter the basis for most qui tam claims in senior care and health care industries.

February 3, 2014 in Federal Cases, Federal Statutes/Regulations, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 29, 2014

Family Court & Medicaid: Does It Have a Role in Allocating Income Between Community Spouse and Nursing Home?

In R.S. v. Division of Medical Assistance & Health Services, released for publication by the Appellate Division of the Superior Court of New Jersey on January 23, the state's Medicaid agency successfully argued that a Family Court order allocating the institutionalized spouse's income to support for the community spouse was not binding on the agency in determining the Community Spouse Monthly Income Allowance (CSMIA). Thus, in the case before the court, the community spouse who had an annual salary of $22,659 was limited to the CSMIA calculation of $1,514 per month as support from her institutionalized husband, rather than the Family Court's order of $3,460 per month.

The appellate court ruling appears to be strongly influenced by facts suggesting the Family Court award, which was not opposed by the husband, was the result of Medicaid planning advice, rather than a fact-based determination of spousal support among separated or divorcing spouses.  The appellate decision begins by noting the court is "asked once again to address 'the continuing tension between the State's effort to conserve Medicaid resources for the truly needy and the legal ability of institutionalized Medicaid recipients to shelter income for the benefit of their non-institutionalized spouses,'" quoting a previous New Jersey opinion in 2005. 

Despite statutory grounds under Medicaid law to "protect" community spouses against "impoverishment" when their husband or wife goes into a nursing home, this ruling permits state calculations of Medicaid allowances to control just how much (or rather, how little) "protection" is available, at least where the allocation occurs at or near the time of nursing home admission.   

January 29, 2014 in Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 28, 2014

"Whistleblower Laws in the 21st Century" - Penn State Dickinson Program on March 20

Senior Care -- in all of its guises -- is Big Business.  And much of that big business involves government contracts and government funding, and therefore the opportunity for whistleblower claims alleging mismanagement (or worse) of public dollars.  For example, in recent weeks, we've reported here on Elder Law Prof on the $30 million dollar settlement of a whistleblower case arising out of nursing home referrals for therapy; a $3 million dollar settlement of a whistleblower case in hospice care; and a $2.2 billion dollar settlement of a whistleblower case for off-prescription marketing of drugs, including drugs sold to patients with dementia

While the filing of charges in whistleblower cases often makes headlines, such as the recent front page coverage in the New York Times about the 8 separate whistleblower lawsuits against Health Management Associates in six states regarding treatment of patients covered by Medicare or Medicaid, the complexity of the issues can trigger investigations that last for years, impacting all parties regardless of the outcome, including the companies, their shareholders, their patients, and the whistleblowers, with the latter often cast into employment limbo.

Penn State Dickinson School of Law is hosting a program examining the impact of "Whistleblower Laws in the 21st Century: Greater Rewards, Heightened Risks, Increased Complexity" on March 20, 2014 in Carlisle, Pennsylvania. Trickett Hall, Penn State Dickinson School of Law, Carlisle

The speakers include Kathleen Clark, John S. Lehman Research Professor at Washington University Law  in St. Louis;  Claudia Williams, Associate General Counsel, The Hershey Company; Jeb White, Esq., with Nolan Auerbach & White; Scott Amey, General Counsel for the Project on Government Oversight (POGO); and Stanley Brand, Esq., Distinguished Fellow in Law and Government, Penn State Dickinson School of Law.    

Stay tuned for registration details, including availability of CLE credits.

January 28, 2014 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, January 24, 2014

Just Another Whistleblower Settlement in the Elder Care World -- for $30 Million?

The Justice Department has announced the settlement of a Whistleblower case, involving allegations that RehabCare Group Inc., RehabCare Group East Inc. and Rehab Systems of Missouri, plus a management company, Health Systems Inc., violated the False Claims Act by engaging in a kickback scheme related to the referral of clients between nursing homes and therapy services. 

Ho-hum.  Just another settlement.  No admissions of wrongdoing.  Promises that they won't do in the future what they say they didn't do in the past.  No reason to put another Whistleblower settlement affecting elder care services on the front page of any newspapers, or make it the lead story on the nightly news, right?

But hey, the settlement figure was $30 million dollars.  Thirty ... Million ... Dollars.  Are we so innured to Whistleblower cases in this country that an agreement to pay $30 million dollars is viewed merely as a cost of doing business?  Do we simply accept it as an extra "tax" on the price of nursing home care -- or  pharmaceutical drug sales --  or hospice care -- just to name three industries that have agreed to pay multi-millions in settlement of False Claim Act suits during the last year? 

I suppose the Treasury is modestly pleased to be recovering payments to offset Medicare or Medicaid costs that are constantly under assault by legislators professing concern about the size of the budget devoted to elder care. The Justice Department says that in the last five years, it "has recovered more than $17.1 billion through False Claims Act cases, with more than $12.2 billion of that amount recovered in cases involving fraud against federal health care programs." 

But what about the persons receiving the care?   How do these these non-admissions of fault, combined with additional costs that surely must reappear in future billings to the public, affect the elders and disabled persons depending on these companies for care? 

January 24, 2014 in Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0) | TrackBack (0)

Friday, January 17, 2014

Center for Medicare Advocacy calls for ending therapy caps in Medicare

Medicare-covered outpatient physical, speech and occupational therapy services are subject to an annual dollar-amount payment cap.  As a result, many Medicare beneficiaries have their therapy terminate prematurely when they reach the cap.  While there is an Exceptions process in place that allows beneficiaries to receive therapy in excess of the caps, it is set to expire on March 31, 2014.  Moreover, the existing process is burdensome and many providers of services are slow to assist beneficiaries in obtaining therapy cap...
It's time to reduce barriers to care, not exacerbate them.  We urge Congress to repeal the Medicare outpatient therapy caps.  As recently highlighted by former Congresswoman Gabrielle Giffords, longer-term, ongoing therapy can be the key to functionality and life-changing improvements.
Read more about this important topic here.

January 17, 2014 in Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | TrackBack (0)