Monday, September 17, 2018

McKnight's Senior Living Commentary Addresses Abuse of "Part-Time" Shift Workers

As anyone who has a loved on in a care setting can probably attest, the individuals who work there have tough jobs. 

I was interested to read a McKnight's Senior Living commentary that focuses on a problem that may not be easy for the public to identify, the intentional use of "part-time" help to avoid an obligation to pay benefits for full time workers. 

The author describes one woman who works 30 hours per week for each of  two different employers -- that is 60 hours per week of hard work without benefits such as employer-sponsored health insurance.  John O'Connor writes in an important column (with a title that could perhaps, unfortunately, be misunderstood because of the reference to a Hispanic name), Senior Living Has Way Too Many Marias:

We often hear about the labor challenge in senior living. To be sure, it's very real. There is a lot of competition, and conditions are especially difficult these days. It's not easy to find and keep people willing to work for the wages that are available.

 

But if we are going to be honest, at least part of the problem has little to do with unforgiving external conditions and more to do with conditions some operators have decided to put in place.

 

To get more to the point, many communities simply refuse to hire full-time workers. From an economics standpoint, that is understandable. But it doesn't do much for the Marias of the world. And there are a lot more of them out there than many operators would like to admit.

 

September 17, 2018 in Consumer Information, Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Tuesday, September 11, 2018

Stetson's 20th Annual SNT Planning Conference

Registration is open for Stetson Law's 20th annual Special Needs Planning Conference.  The agenda is here . There are three pre-conferences on October 17: a full day program on Tax, a full day program on Pooled SNTs, and a half-day program on Veterans benefits. The National Conference is two days long and runs October 18-19, 2018.  Registration info is available here. Can't attend in person? The National Conference is being webcast. Early bird registration ends September 21, 2018 so don't delay!

Disclaimer: I'm the conference chair. Hope to see you there!

September 11, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Programs/CLEs | Permalink

Attracting Adequate, Qualified Staff: The Impact of Payment Issues in Long-Term Care

I've been reading articles for several weeks about a "troubled" nursing home in Connecticut where staff members were reportedly being paid late, and not receiving payments on related benefit claims (including health care and pensions).   

The reports sound unusually mysterious, with indications of an executive's "loan" to a related charity from operating reserves.   Suddenly more than $4 million was apparently restored to a key pension account:  

As News 12 has reported, federal agents raided the center back in May. When the raid happened, that account was down to $800. For years, workers have complained about missing retirement money. In a lawsuit, the Labor Department claims the facility's owner illegally funneled their money into his own private charity.

 

Now, according to new court documents, the $4 million was unexpectedly deposited into the pension account last week. It's unclear where the money came from, and even the bankruptcy trustee running the facility was unsure.

 

"I don't truly know the source, but I do know that there's $4.1 million in this bank," bankruptcy trustee Jon Newton said at a court hearing yesterday.

 

But in a recent court hearing, owner Chaim Stern's lawyer said the money "was meant to represent the $3.6 million transferred from the (retirement) plan to Em Kol Chai." That's the charity authorities say Stern controls.

 

Workers may not get as much of that money as they think. Bridgeport Health Care has a long list of creditors, and they could potentially get a share.

 

News 12 reported back in July that part of the facility, called Bridgeport Manor, is shutting down. Lawyers say they hope to wrap that process up within a month.

For more read:  Millions Mysteriously Appear in Account of Troubled Nursing Home.

September 11, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0)

Monday, September 10, 2018

How Retirement of Baby Boomer Business Owners Will Affect Employees

The Washington Post recently published an interesting article considering the implications of retirement of business owners on employees. What a ‘silver tsunami’ of retiring Baby Boomer business owners could mean for their workers  focuses on the implication of "the wave of retiring Boomers who own closely held private businesses. They will need to sell their companies, transition them to a new generation of owners -- or risk shutting them down, cutting jobs in the process."

The article looks at "a little noticed measure in the recently signed defense spending bill aims to address the widening wealth divide between workers and the owners or top executives who manage them. The measure, co-sponsored by Sen. Kirsten Gillibrand (D-N.Y.), is intended to expand financing options and raise awareness for programs that can help employees become partial owners of the companies where they work" which "make[s] it possible for firms to use Small Business Administration loans to finance what’s known as employee stock ownership plans, or ESOPs, an arrangement that can help transfer ownership of the company to employees rather than have to find a suitable buyer or rely on family members who may be ill-suited or unprepared to keep the lights on."

According to one expert, this change is a big deal, although the "immediate impact is probably limited to small companies: The SBA loans that can be used are capped at $5 million, though they can be combined with other financing." 

Stay tuned!

September 10, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Other | Permalink

Thursday, August 30, 2018

Rep Payee Reviews

Recently I was reading the SSA website on Rep Payees and learned that certain rep payees have an accounting/auditing requirement.  Representative Payee Site Reviews Conducted By Protection And Advocacy System explains 

On April 13, the President signed the Strengthening Protections for Social Security Beneficiaries Act of 2018. The law directs state Protection & Advocacy (P&A) system organizations to conduct all periodic onsite reviews along with additional discretionary reviews. In addition, the P&As will conduct educational visits and conduct reviews based on allegations they receive of payee misconduct.

The P&A conducts a review, which includes:

  • an interview with the individual or organizational representative payee;
  • a review of the representative payee’s financial records for the requested beneficiary or sample of beneficiaries served;
  • a home visit and interview for each beneficiary included in the review; and
  • an interview with legal guardians and third parties, when applicable.

Financial Records Representative Payees Should Have Available for Review

When the P&A schedules the review, the reviewer will request the records needed for each beneficiary. Some common financial documents that representative payees may be asked to provide are:

  • a beneficiary budget;
  • a beneficiary ledger;
  • individual bank statements;
  • Collective account bank statements;
  • receipts of income;
  • account balances;
  • bank reconciliation records;
  • cancelled checks;
  • expense documentation including receipts, bills, and rental agreements;
  • how the payee keeps conserved benefits (e.g., checking, savings, etc.); and
  • any other financial documents that pertain to a beneficiary’s Social Security and/or SSI benefits.

As part of the review the P&A also visits the beneficiary as well as any guardian or any "third parties." Anyone have any experience with these "audits"?

August 30, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Federal Statutes/Regulations, Social Security | Permalink | Comments (0)

Wednesday, August 29, 2018

Reforming Social Security - Child Caregiver Credits?

The Center for Retirement Research at Boston College has released an issue brief, #18-15, Modernizing Social Security: Caregiver Credits.  The brief opens with the statement of the problem

Women still tend to work fewer years and earn less than men, which leads to less income in retirement. One reason is that women are often still the main family caregiver. Traditionally, Social Security has recognized this role by providing spousal and widow benefits for married women. Today, however, many women are not eligible for these benefits because they never married or they divorced prior to the 10-year threshold needed to qualify. Even those who are married are less likely to receive a spousal benefit, as their worker benefit is larger. Thus, many mothers receive little to no support to offset lost earnings due to childrearing.

The 10 page brief looks at how the topic is handled in other countries and discusses two avenues for resolution in the U.S.: (1) "[i]ncrease the number of work years that are excluded from benefit calculations ... [and] (2) [p]rovide earnings credits to parents with a child under age six for up to five years." The article concludes in part

It is easy to understand the appeal of crediting Social Security records to reflect lost earnings due to caring for a child. In the past, this activity was usually compensated for by the spousal benefit, but changes in women’s work and marriage patterns have left fewer eligible for it. A credit is also more appealing than a spousal benefit if the goal is to compensate for the
costs of childrearing, independent of marital status.

August 29, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Other, Social Security | Permalink

Monday, August 20, 2018

NYT: Same Sex Couple Challenge CCRC Admissions Policy as Discriminatory

From wedding cakes to retirement communities.  The dissonance here starts from the first mention of the name of the community, "Friendship Village."  From the New York Times's Paula Span, comes news of a challenge to an admissions policy as applied to an older, same sex couple seeking to move into a "faith-based" nonprofit Continuing Care Retirement Community or CCRC (also known as Life Plan Communities) near St. Louis:  

The community seemed eager to recruit them, too, offering a lower entrance fee if they signed an agreement promptly. So they paid a $2,000 deposit on a two-bedroom unit costing $235,000. They notified their homeowners association that they’d be putting their house in Shrewsbury, Mo., on the market and canceled a vacation because they’d be moving in 90 days. Ms. Walsh contacted a realtor and began packing.

 

Then came a call from the residence director, asking Ms. Walsh the nature of her relationship with Ms. Nance, 68, a retired professor.

 

Natives of the area, they’d been partners for nearly 40 years. Before the Supreme Court legalized same-sex marriages across the country, they’d had a harborside wedding in Provincetown, Mass.  “I said, ‘We’ve been married since 2009,’” Ms. Walsh replied. “She said, ‘I’m going to need to call you back.’”

 

Last month, the women brought suit in federal court, alleging sex discrimination in violation of the federal Fair Housing Act and the Missouri Human Rights Act.

For the full article, read "A Retirement Community Turned Away These Married Women."   

 

August 20, 2018 in Consumer Information, Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Thursday, August 16, 2018

Senator Letter to CMS on SNF Staffing Ratings

Senator Ron Wyden has sent a letter to the CMS  administrator about CMS' staffing ratings of SNFs. His letter points out discrepancies between self-reported data and the newly required payroll data that leads to his concerns that the correctness of the information shared with residents and families

Senator Wyden has asked five  questions, seeking replies by August 24, 2018.

  1. What are the requirements and safeguards CMS has in place to ensure SNFs provide accurate information as part of the 5-Star Quality Rating System. How are these requirements enforced?
  2. Please provide an analysis of the difference in staffing levels of SNFs between the self-reported methodology and the payroll data methodology?
  3. What does CMS plan to do in the instances where payroll data illustrates the self-reported staffing data was inaccurate?
  4. Would CMS consider updating the current staffing quality measures to, in addition to measuring average staffing levels, take into account inappropriate fluctuations in staffing that may lead to patients receiving inadequate care?
  5. Would CMS consider measuring patient and/or family satisfaction as part of the 5-Star Quality Rating System?

 

 

August 16, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink

Tuesday, August 14, 2018

Webinar-Sexual Abuse in Nursing Homes

Register now for a free webinar from the National Consumer Voice for Quality Long Term Care.  The webinar is scheduled for September 5, 2018 at 2 edt.  Here is some info about the webinar

Join this webinar to learn about sexual abuse in nursing homes.  Presenters will discuss a variety of topics to help you recognize the signs of sexual abuse and immediately respond to it. 

We will examine the full scope of sexual abuse in nursing homes, including: (1) its prevalence, (2) the physical and social signs of sexual abuse, (3) who is most at risk, and (4) who the perpetrators are.  In addition, you will learn the protections the federal nursing home rule provides for nursing home residents against this abuse and how to respond to the needs of victims.  Finally, we will equip you with concrete knowledge on how ombudsmen can advocate for nursing home residents who are victims of this type of abuse, including hearing from a special presenter on the ombudsman role in the Washington Alliance to End Sexual Violence in Long-Term Care

To register, click here

August 14, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Programs/CLEs, Webinars | Permalink

Genetic Information Nondiscrimination -- Should Consumer Protections Apply to Long-Term Care and Disability Insurance?


Lily-james-mamma-mia-2-1048601While following the most recent Tour de France cycling competition, I was intrigued by the spectrum of "products"advertised on broadcasts of the race stages --  or, alternatively, on the increasingly popular medium of podcasts by commentators such as Lance Armstrong on The Move.   On one end was the amusing use of bicycling footage from the new movie Mama Mia 2, spliced to make it appear actual TdF racers were just ahead of the maniacal cast. On the other end were advertisements for genetic testing via companies once better known for tracking family trees.   If your TdF hero (or anti-hero?) Lance Armstrong was advocating the benefits of better genetic knowledge via Helix, would those consumers consider the potential ripple effects of such knowledge?

Kaiser Health News recently pointed to key issues:   

The federal Genetic Information Nondiscrimination Act [of 2008] prohibits health insurers from asking for or using your genetic information to make decisions about whether to sell you health insurance or how much to charge. But those rules don’t apply to long-term-care, life or disability insurance.

 

When you apply for long-term-care insurance, the insurer may review your medical records and ask you questions about your health history and that of your family. It’s all part of the underwriting process to determine whether to offer you a policy and how much to charge.

 

If the insurer asks you whether you’ve undergone genetic testing, you generally have to disclose it, even if the testing was performed through a direct-to-consumer site like 23andMe, said Catherine Theroux, a spokeswoman for LIMRA, an insurance industry trade group.

In the current  political climate, it seems unlikely that Congress would tackle a wider application of mandatory nondiscrimination policies connected to risk factors for additional insurance policies.  Thus, if you are asked the questions, you have to tell the truth or be subject to disqualification from benefits if the company later learns, for example, you were aware you had genes associated with increased risk of dementia, but failed to disclose that fact in the application process, a factor relevant to underwriting.  Timing can matter, as also suggested in the Kaiser Health News Report:  

Some states provide extra consumer protections related to genetic testing and long-term-care insurance, said Sonia Mateu Suter, a law professor at George Washington University who specializes in genetics and the law. But most follow federal law.  If you get genetic testing after you have a policy, the results can’t affect your coverage.

For more, read How Genetic Tests Muddy Your Odds of Getting a Long-Term-Care Policy.

August 14, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Monday, August 13, 2018

Elders in Bankruptcy On the Rise

A recent article, ‘Too little too late’: bankruptcy booms among older Americans published in The Business Times opens with a sobering thought: "[f]or a rapidly growing share of older Americans, traditional ideas about life in retirement are being upended by a dismal reality: bankruptcy." A new study featured in the article paints a foreboding picture for many elder Americans "'[t]he rate of people 65 and older filing for bankruptcy is three times what it was in 1991, the study found, and the same group accounts for a far greater share of all filers." What is causing this increase? According to the article, many factors, including changes in pension plans, health care out of pocket costs, declining incomes, to name a few.  It notes as well that elder Americans may have more challenges in recovering from financial setbacks than others.  The study is done by the Consumer Bankruptcy Project, which "is a long-running effort now led by Thorne; Lawless; Pamela Foohey, a law professor at Indiana University; and Katherine Porter, a law professor at the University of California, Irvine. The project — which is financed by their universities — collects and analyzes court records on a continuing basis and follows up with written questionnaires. ... Their latest study —which was posted online Sunday and has been submitted to an academic journal for peer review — is based on a sample of personal bankruptcy cases and questionnaires completed by 895 filers ages 19 to 92."

The paper by the study authors, Graying of U.S. Bankruptcy: Fallout from Life in a Risk Society has been placed on SSRN.

The abstract offers this

The social safety net for older Americans has been shrinking for the past couple decades. The risks associated with aging, reduced income, and increased healthcare costs, have been off-loaded onto older individuals. At the same time, older Americans are increasingly likely to file consumer bankruptcy, and their representation among those in bankruptcy has never been higher. Using data from the Consumer Bankruptcy Project, we find more than a two-fold increase in the rate at which older Americans (age 65 and over) file for bankruptcy and an almost five-fold increase in the percentage of older persons in the U.S. bankruptcy system. The magnitude of growth in older Americans in bankruptcy is so large that the broader trend of an aging U.S. population can explain only a small portion of the effect. In our data, older Americans report they are struggling with increased financial risks, namely inadequate income and unmanageable costs of healthcare, as they try to deal with reductions to their social safety net. As a result of these increased financial burdens, the median senior bankruptcy filer enters bankruptcy with negative wealth of $17,390 as compared to more than $250,000 for their non-bankrupt peers. For an increasing number of older Americans, their golden years are fraught with economic risks, the result of which is often bankruptcy.

August 13, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Other, Retirement, Statistics | Permalink

Friday, August 10, 2018

Filial Friday: N.D. Nursing Home's Claim Against Adult Children for Father's Unpaid Bills Set for September Trial

According to news reports, here and here,  three siblings are facing a September 2018 trial date after being sued by a North Dakota nursing home for more than $43,000 in unpaid costs of care for their father, incurred during a seven month stay at the facility.  The children maintain they have no contractual obligation with the nursing home, and were not involved in their father's application for Medicaid, nor did they receive disqualifying gifts from their father.   A denial of a Medicaid application can arise if there is an uncompensated transfer of assets within a five year look back period, or because of certain other unexplained failures to use the father's "available" resources to pay for his care.  

A North Dakota's statute, N.D.C.C. Section  14-09-10, with language that can be traced back to filial support laws of  Elizabethan England,  provides: 

It is the duty of the father, the mother, and every child of any person who is unable to support oneself, to maintain that person to the extent of the ability of each. This liability may be enforced by any person furnishing necessaries to the person. The promise of an adult child to pay for necessaries furnished to the child's parent is binding.

One news report quotes the executive director of the North Dakota Long Term Care Association, Shelly Peterson, as saying nursing homes use the law to go after adult children in only one circumstance:  "When parents transfer income or assets to their children, and then the parents don't qualify for Medicaid."  The director is reported as further contending that "facilities are 'legally obligated' under Medicaid to pursue every avenue possible to collect that debt, including suing, before they can get reimbursed from the state Department of Human Services for a debt that cannot be recovered."

According to some sources, local legislators, aroused by this suit, are looking at whether North Dakota should continue to permit nursing home collections under North Dakota's indigent support law.  Such laws have been blocked or repealed in most other U.S. states.  North Dakota and my own state, Pennsylvania, are the two most notable exceptions. 

My reaction to the news articles on this case is "something doesn't add up here" and some key facts seem to be missing. 

  • First, if the father was in the nursing home for 7 months, who did the children think was paying for his care?  I can't imagine no one in the family asked that question for that period of time (although certainly Medicaid applications can take time to process and perhaps the denial came in after the father's death). 
  • What was the basis for any denial for Medicaid?  I've seen Medicaid denied for inability of the applicant (or applicant agent) to track down some old resource, such as a demutualized life insurance policy. Also, what is the source of the contention that Medicaid law "requires the facility to sue" to collect the debt?  I'm not aware of any such rule at the federal level.
  • Is there another member of the family involved in the application -- someone other than the three target children --  or is there another family member involved in any "transfers" causing an alleged ineligibility period?  In the U.S., filial support laws don't prioritize collection, nor require recovery from so-called "bad" children, rather than more "innocent" children.
  • Finally, why weren't there care planning meetings with the family that included discussions of costs of care?  It always raises a red flag for me when the "first" alleged notice of such a claim arises after the death or discharge of a resident.  

Perhaps we will hear the results of the trial or any settlement, and thus hear a more complete picture of how these bills came to accumulate.  

  

August 10, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Thursday, August 2, 2018

More on Hiring ALJs as result of Executive Order

We blogged last week about the July 10, 2018 executive order that exempted the hiring of ALJs from the competitive process used up until then. NPR and the Washington Post did stories about the impact of the executive order on the ALJ hiring process, offering to some extent, two competing views of the outcome.

In Trump moves to shield administrative law judge decisions in wake of high court ruling explains the process typically used by federal agencies: "[w]hile individual agencies generally post their job vacancies and then assess and select candidates, they hire ALJs from a central list of applicants the Office of Personnel Management deems qualified." Referencing the recent Supreme Court decision that held that an ALJ for the SEC was not correctly appointed, the ALJ "therefore was not authorized to decide in the case, which involved a penalty against an investment adviser. [Further] [t]hat decision opens the door to similar challenges across all agencies since their ALJs were selected in the same way, often by a lower-level official who had relatively little choice of candidates from the list, said James Sherk, special assistant to the president for domestic policy" who indicated in an interview that a large number of challenges on that point have been filed and that the executive order will hopefully "protect agencies against challenges to the legitimacy of their ALJs."  The article also discusses the potential for politically-based hiring decisions. It also notes that certain hearing offiers are called ALJs;  but the executive order won't "apply to hiring of immigration judges or other agency-level hearing officers who in some contexts are generically referred to as administrative law judges...."

NPR's story,  Trump Changes How Federal Agency In-House Judges Are Hired notes that the ALJs covered include Medicare.  Focusing more on the potential political ramifications of the executive order which basically makes the ALJs political appointees, the NPR story quotes "the president of the American Constitution Society [who] in a statement specifically pointed to possible repercussions with the Social Security Administration. 'Administrative law judges handle Social Security disability cases. This administration is on record as wanting to lessen benefits. It's likely that a political ALJ appointed by this administration would rule against the beneficiaries and deny claims.'"

 

 

August 2, 2018 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Social Security | Permalink

Monday, July 30, 2018

SNF Staffing and Resident Care

Yesterday I blogged about a story in Kaiser Health News on the payroll reporting by SNFs that Medicare uses to determine staffing levels. KHN also has examined the data to see if there is a correlation between staffing and a resident's care. Mining A New Data Set To Pinpoint Critical Staffing Issues In Skilled Nursing Facilities notes that "[i]n April, Medicare began using [the payroll records, known as the payroll-based journal or PBJ] to rate staffing for more than 14,000 skilled nursing facilities (SNFs). The PBJ data gives a much better look at the how staffing relates to quality of care than the less precise — and too easy to inflate — staffing data Medicare had been using since 2008, which were based on two-week snapshots of staffing homes provided to inspectors. The data show staffing and occupancy on every day — an unprecedented degree of granularity that allows for new levels of inquiry."

The author offers

Low staffing is a root cause of many injuries in nursing homes. As I wrote in the article published in The New York Times based on the data: “When nursing homes are short of staff, nurses and aides scramble to deliver meals, ferry bedbound residents to the bathroom and answer calls for pain medication. Essential medical tasks such as repositioning a patient to avert bedsores can be overlooked when workers are overburdened, sometimes leading to avoidable hospitalizations.”

The author describes in detail the decisions that were made in crunching the data, using "two intersecting principles: to reflect residents’ lived experience as accurately as possible, and to be fair to the facilities. When in doubt, [the author] erred on the side of caution."

As an aside, the author notes the acronym for Payroll-Based Journal is PBJ!

 

July 30, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Statistics | Permalink

Staffing Ratios Impact Medicare SNF Ratings

A recent story in Kaiser Health News reports that almost 10% of SNFs have lower ratings because of staffing ratios. 1,400 Nursing Homes Get Lower Medicare Ratings Because Of Staffing Concerns explains that "Medicare has lowered its star ratings for staffing levels in 1 in 11 of the nation’s nursing homes — almost 1,400 of them — because they either had inadequate numbers of registered nurses or failed to provide payroll data that proved they had the required nursing coverage ...." This information is reported as a result of the ACA, where in the past, the SNFs just reported staffing numbers.  The results of this reporting change are interesting. "The payroll records revealed lower overall staffing levels than homes had disclosed, particularly among registered nurses. Those are the highest-trained caregivers required to be in a nursing home, and they supervise other nurses and aides. Medicare mandates that every facility have a registered nurse working at least eight hours every day."

One industry representative quoted in the article noted that there is a "workforce shortage."  There is a caveat to using the information, as the article explains. "Medicare concedes that because the payroll system is geared toward reporting hourly work, salaried staff may not always be reflected correctly, especially if they were working overtime. But Medicare had warned the nursing homes in April that the downgrades would be coming if facilities continued to show no registered nurses on duty. The agency noted it has been preparing nursing homes since 2015 for the new payroll system."

Kaiser analyzed the data and in the article notes a difference between for-profit and non-profits as far as staffing numbers.  The article also notes daily fluctuations in staffing, and especially fluctuations in staffing on weekends.

Staffing data is very useful for families in choosing a nursing home so this new data collection is definitely a step in the right direction!

July 30, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Indiana Appellate Court Compels Accident Settlement Funds Be Paid To Special Needs Trust

On July 26, 2018, the Indiana Court of Appeals ruled unanimously that a trial judge was wrong in refusing to fund a severely injured adult's special needs trust with $6.75 million in funds from settlement of tort suit. 

The trial judge had resisted, saying he disagreed with the legislative policy for special needs trusts, calling it a "legal fiction of impoverishment" that unfairly shifted costs of care to taxpayers.  The trial judge would allow only $1 million in settlement funds to be placed in trust.  

In the final paragraphs of In re Matter of Guardianship of Robbins, the appellate court concluded:   

The trial court may well have a genuine disagreement with the policy decisions of our state and federal legislators, but it is still bound to abide by them. . . . 

 

Here, there are no constitutional concerns preventing the legislature's policy choices from being enforced. Both our federal and state legislators have made an express policy decision to allow for a “legal fiction of impoverishment” by placing assets in a special needs trust, knowing full well that it has the potential to shift expenses to the taxpayer, but trying to ameliorate that cost by requiring that any remaining trust proceeds be repaid to the State upon the disabled person's death. While the trial court is free to disagree as to the wisdom of the legislature's policy choices, the trial court exceeded the bounds of its authority by refusing to enforce this policy choice based on that disagreement.

 

The trial court also refused to place the full amount of the settlement proceeds into the special needs trust because it concluded that the trust was solely for the benefit of the Guardian and Timothy's descendants. This is a mistake of law. As a matter of law, a special needs trust must contain a provision declaring that, upon the death of the disabled trust beneficiary, the total amount of Medicaid benefits must be paid back firstbefore any distributions to heirs are made. 42 U.S.C. § 1396p(d)(4)(A)I.C. § 12-15-2-17(f). Additionally, the special needs trust must be administered for the exclusive benefit of the disabled individual beneficiary for his or her lifetime. . . .  Consequently, it is a legal impossibility that Timothy's special needs trust is designed to “benefit” either the Guardian or Timothy's descendants, and the trial court's conclusion in this regard was erroneous.

The trial court's ruling on the special needs trust was reversed and the case was remanded "with instructions to direct that the full, available amount of settlement proceeds be placed in Timothy's special needs trust."

July 30, 2018 in Cognitive Impairment, Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, July 24, 2018

Unusual Story Involving Allegations of NH Medicare Fraud and Allegations of Bribery of University Officials

From the publication Inside Higher Ed, a somewhat amazing compilation of allegations.  The July 23 , 2018 article begins:

Philip Esformes is a Florida business executive facing numerous federal charges of Medicare fraud related to the nursing homes and assisted-living centers he has owned. The case took an unusual turn Thursday when the federal government accused Esformes of bribing a basketball coach at the University of Pennsylvania to help get Esformes's son admitted to Penn.

 

The indictment says that Esformes gave $74,000 in cash, plus additional perks such as limo services and rides in private jets, to a basketball coach who then placed Esformes's son on the list of "recruited basketball players," greatly enhancing the son's chances of being admitted. The coach is not identified by name in the indictment and was not charged with anything. Nor was Penn named. But prosecutors in court acknowledged that Penn is the university in question. The coach is Jerome Allen, who led the Penn program for six years and is now an assistant coach of the Boston Celtics.

 

Esformes is in jail, but his lawyer said he would dispute the new bribery charges. The lawyer has acknowledged that payments were made by Esformes to Allen to help Morris Esformes, the son, get better at basketball. But that answer may be complicated for Penn, given that such payments may violate National Collegiate Athletic Association rules. Morris Esformes, who played basketball in high school, did enroll at Penn and is currently a rising senior. He has never played on the basketball team there.

 

Beyond the case against Esformes, the indictment draws attention to the extreme advantage that athletes have in the admissions process -- not just at universities known for winning national championships, but at elite academic institutions that are highly competitive in admissions. . . .

For more, read Indictment Alleges Bribery in Admissions at Penn.  My thanks to colleague Laurel Terry for sending this article our way.  

 

July 24, 2018 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Medicare | Permalink | Comments (0)

Monday, July 23, 2018

Taxpayer Identity Theft

Ugh, identity theft. It's just awful.  Too many people have their identities stolen and the thieves use the information to file false tax returns. Is the IRS doing enough to protect taxpayers? The GAO recently released a report analyzing the actions of the IRS and making recommendations.  Identity Theft: IRS Needs to Strengthen Taxpayer Authentication Efforts provides 11 recommendations from the GAO, revolving around identity authentication. Recommendations include policies for undertaking risk assessments through a variety of mediums, since taxpayers don't use the same communications method to contact the IRS, examine procedures and collect data. The full report is available here.  The landing page also offers highlights as well as a podcast. And here's a bonus recommendation-whatever safeguards the IRS uses for authentication, how about making the reporting process as easy as possible for the victims?  Just a thought....

July 23, 2018 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Other | Permalink | Comments (0)

It's Hurricane Season-Are Nursing Homes Ready?

Hurricane season started June 1 and runs through November.  You may recall the tragedy that happened in Florida and the response from Florida requiring SNFs to have generators. So are nursing homes ready for hurricane season in Florida and elsewhere?  Bloomberg Law ran this story, Nursing Homes Cautiously Wade Into Hurricane Season.

Nursing homes are reviewing and updating their processes to comply with emergency planning regulations that took effect last November, according to the Washington-based American Health Care Association. Some outside the industry worry, though, that weaknesses still exist—and could put seniors at risk once again. They point to a lack of bite in federal oversight and to limited resources challenging change in institutional care.

One sobering note in the article provided these statistics nationwide:  CMS "found more than 1,850 incidents of nursing homes failing to have written emergency evacuation plans between 2011 and 2018, and 3,770 nursing home violations of requirements to inspect power generators weekly and test them monthly...." This data came from "a record review of CMS’s Nursing Home Compare safety deficiency data."

What about Florida? The article notes that Florida is on the right path...but.... "Nursing homes are now “generally much more prepared” for 2018’s hurricane season than they were a year ago, creating plans for emergency power and evacuation ... [and Florida's Agency for Health Care Administration] said the agency would do everything it could to “strictly” hold senior care facilities to the letter of the law, such as fines for noncompliance."  Even though the Florida SNFS are following the rules, "just 165 of the 684 providers have implemented a plan and the rest have requested extensions, according to the AHCA’s live tally July 19. Fewer assisted living facilities are in compliance at nearly 73 percent (or 2,260 providers)."

This all sounds good, but if another storm strikes, we may find this isn't enough. One expert in the article pointed out the lack of action at the federal level, offering that "the federal government hasn’t implemented any robust standards changes or safeguards, and there’s “no reason” to believe the same flaws don’t exist this time around...."

The article discusses the issues with lack of resources (isn't that an issue, regardless of hte problem), how there really isn't a one-size-fits-all solution (Oklahoma has tornadoes, but not hurricanes) and the different regulation of SNFs and ALFs.

CMS did act in 2016, unveiling "'all-hazards,' four-pronged approach for nursing home disaster preparation in 2016 that senior care facilities were subject to following the worst of last year’s storms. [CMS required] a facility and community provider risk assessment taking into consideration a provider’s regional susceptibility to different types of emergencies. Providers then had to develop protocols to be reviewed and updated annually for handling potential threats. That extended to the ability to provide care but also equipment and power failures, building or supply loss, and communication flow breaches such as cyberattacks....Nursing homes were also required to develop a communications plan in case of emergency across providers, staff, state and local public health departments, and emergency management agencies, according to the CMS rule (RIN:0938-AO91). And they have to train employees and test and update their emergency plans annually."

Let's hope that we don't have a repeat of those images from last year's storms in Texas and Florida.   Advise clients to ask a facility for a copy of their disaster plan and learn about any contracts they have signed with transportation companies to provide evacuation transportation. Also, how does the facility decide whether to evacuate or shelter in place.  Cross your fingers-We have 4 months left of hurricane season.

July 23, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, July 20, 2018

Changing the Way ALJs are Appointed?

The President signed an Executive Order on July 10, 2018. Executive Order Excepting Administrative Law Judges from the Competitive Service references the recent Supreme Court decision Lucia v. Securities and Exchange Commission.

The Executive Order contains this explanation:

Previously, appointments to the position of ALJ have been made through competitive examination and competitive service selection procedures.  The role of ALJs, however, has increased over time and ALJ decisions have, with increasing frequency, become the final word of the agencies they serve.  Given this expanding responsibility for important agency adjudications, and as recognized by the Supreme Court in Lucia, at least some ‑‑ and perhaps all ‑‑ ALJs are “Officers of the United States” and thus subject to the Constitution’s Appointments Clause, which governs who may appoint such officials.

As evident from recent litigation, Lucia may also raise questions about the method of appointing ALJs, including whether competitive examination and competitive service selection procedures are compatible with the discretion an agency head must possess under the Appointments Clause in selecting ALJs.  Regardless of whether those procedures would violate the Appointments Clause as applied to certain ALJs, there are sound policy reasons to take steps to eliminate doubt regarding the constitutionality of the method of appointing officials who discharge such significant duties and exercise such significant discretion.

The executive order, as noted in its title, makes "an exception to the competitive hiring rules and examinations for the position of ALJ" due to "conditions of good administration." The Executive Order amends 5 C.F.R. 6.2, 6.3(b), 6.4 and 6.8. To read more, click here.

July 20, 2018 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations | Permalink