Wednesday, January 17, 2018

FINRA FAQ for Elder Financial Exploitation

FINRA has released FAQs specifically to address elder financial exploitation. Frequently Asked Questions Regarding FINRA Rules Relating to Financial Exploitation of Seniors  explains the new rules that take effect on February 5, 2018.  "[T]he SEC approved: (1) the adoption of new FINRA Rule 2165 (Financial Exploitation of Specified Adults) to permit members to place temporary holds on disbursements of funds or securities from the accounts of specified customers where there is a reasonable belief of financial exploitation of these customers; and (2) amendments to FINRA Rule 4512 (Customer Account Information) to require members to make reasonable efforts to obtain the name of and contact information for a trusted contact person (“trusted contact”) for a customer’s account."(citations omitted) FAQs 1 and 2 deal with temporary holds, 3 with trusted contacts, and 4 with disclosures.  The FAQ are available here.

January 17, 2018 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Other, Property Management | Permalink

Friday, January 12, 2018

Federal Right to Try Legislation

The New England Journal of Medicine recently published an opinion article, Federal Right-to-Try Legislation — Threatening the FDA’s Public Health Mission. The second paragraph sets out the issues

[T]he FDA created “expanded access” pathways to give desperate patients without other options access to promising products before approval, while still providing oversight. The agency received more than 5000 requests under those pathways between 2010 and 2014.1 But in August 2017, the Senate passed the Trickett Wendler, Frank Mongiello, Jordan McLinn, and Matthew Bellina Right to Try Act, which would sharply curtail the FDA’s oversight of access to investigational drugs for patients with life-threatening illnesses.2 Though popular with the public and supported by politicians from both parties, the legislation has been widely criticized by policy experts. In isolation, its impact would probably be limited, since the bill was substantially hollowed out to secure the necessary votes. Nonetheless, the motivation behind the proposed legislation threatens to weaken the FDA’s ability to pursue its public health mission.

The article discusses the bill, the concerns expressed and the countervailing arguments.  The authors conclude "[a]re we prepared to abandon the FDA’s gatekeeping role in favor of unfettered patient autonomy and market forces, risking precisely the problems that prompted Congress to grant the FDA its present authority? The agency has made substantial progress in balancing the needs of desperate patients and the principle that all patients deserve evidence that the benefits of medical products justify their risks. We upset that balance, and diminish the FDA’s public health mission, at our peril."

A pdf of the article is available here.

January 12, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0)

Tuesday, January 9, 2018

MN Concerns SNF Penalty Rollback Affects Efforts to Fight Elder Abuse

We reported recently that the administration has decided to take a step back from the imposition of penalties vs. nursing homes.  The StarTribune ran a story that Minnesota officials have concerns that this step back will harm their efforts to fight elder abuse. U.S. easing of nursing home penalties could imperil Minnesota's crackdown on elder abuse notes that "[t]he federal move also comes as Gov. Mark Dayton has pledged tougher action against elder abuse and has promised improvements to the state’s troubled system for investigating and responding to allegations of maltreatment in senior homes." The article reminds readers of a five-part series that the paper had run back in November of 2017 that focused on the state's handling of elder abuse cases. The series was the catalyst for the Minnesota Governor's creation of "a working group to review state oversight of senior care homes and transferred some enforcement authority from the Health Department to the Department of Human Services, which has more resources." The state's acting Commissioner of health has taken steps to attack the backlog of those elder abuse cases pending investigation by increasing staff and moving away from paper records.   The article also offers some comments from those who support the step back from the use of penalties.

 

January 9, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

MN Concerns SNF Penalty Rollback Affects Efforts to Fight Elder Abuse

We reported recently that the administration has decided to take a step back from the imposition of penalties vs. nursing homes.  The StarTribune ran a story that Minnesota officials have concerns that this step back will harm their efforts to fight elder abuse. U.S. easing of nursing home penalties could imperil Minnesota's crackdown on elder abuse notes that "[t]he federal move also comes as Gov. Mark Dayton has pledged tougher action against elder abuse and has promised improvements to the state’s troubled system for investigating and responding to allegations of maltreatment in senior homes." The article reminds readers of a five-part series that the paper had run back in November of 2017 that focused on the state's handling of elder abuse cases. The series was the catalyst for the Minnesota Governor's creation of "a working group to review state oversight of senior care homes and transferred some enforcement authority from the Health Department to the Department of Human Services, which has more resources." The state's acting Commissioner of health has taken steps to attack the backlog of those elder abuse cases pending investigation by increasing staff and moving away from paper records.   The article also offers some comments from those who support the step back from the use of penalties.

 

January 9, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Monday, January 8, 2018

The Challenge of Finding Safe & Effective Pain-Killers for Older Adults

Over the holidays, unfortunately I had the experience of learning more about how older consumers struggle to understand what safe and effective treatments are available.  In this instance, my mother, in her 90s, was experiencing overwhelming back pain.   She has a long-history of osteoporosis (and it runs in the family on the female side, so my sister and I pay particular attention to this issue!) and in the last few weeks without any known "accident," she had begun to find it almost impossible to walk without pain.  She's not the complaining type, and, having been raised by parents who were Christian Scientists, she tends to follow a "mind over matter" approach to this kind of problem.  But, by Sunday last week, it was no longer possible to pretend she wasn't deeply uncomfortable.

We began another health care odyssey.  Some of the steps we had already learned from past "holiday" experiences with my parents, including calling the "non-emergency" 911 number to get an experienced EMT evaluation of her status in the home, and, if necessary, a transport from her home to the emergency room.  Then, recognizing that New Year's Eve is probably not the best night (if such a thing even exists) to spend in the local hospital's ER, we decided to go early in the morning.  

Five hours after our arrival in the ER, we left with a new "LSO" back brace, instructions on how to use it, and prescriptions for a different walker and a new pain medication.  On the latter point, we informed the ER physician of the fact Mom had not done well on narcotic pain relievers in the past ("why are those ants crawling on the walls") but we were told the drug prescribed was like a very strong Ibuprofen, but in a formulation that would not interact with the blood thinner she was on or her pacemaker.

We duly stopped at the pharmacy on the way home, and I signed my life away in order to pick up her prescription as she was unable to walk in to get it herself.  When we got home,  there were two documents in the bag with the prescription, including what I would call a typical "product insert" that looks like a page from the Physician's Desk Reference and a second sheet entitled "Directions for Use."  The top of the instructions warned, "This is a narcotic drug and not recommended for the relief of pain in...."  And then the list of disqualifying conditions included at least 3 of my mother's age-related conditions.  Yikes!  

My sister and I are  not usually intimidated by product inserts, but here the instructions seemed directly at odds with our concerns about narcotics for mom.  Everything we found on the internet only made us more confused and worried.  

By this time it was late on New Year's Eve, her pain was increasing, and we knew we couldn't persuade her to go back to the ER and her primary care physician wasn't on call.  The bottle said "every 6 hours."  The ER physician had orally told us "every 6 to 8 hours," and finally we knew we had no choice -- her pain was real and we started using it at 12 hour intervals, gradually moving down to 8 hour intervals before she seemed to have real relief.  It was another 5 days before her very kind primary care physician could squeeze us in for an appointment to have a more complete conversation -- and the good news is that we are now more comfortable about a longer range plan.

So on the heels of that multi-day experience, I was very interested in an article I spotted for my airplane trip home to Pennsylvania from Arizona. Phoenix Magazine had a detailed feature story in their January 2018 issue on "Pharma Chameleon," reporting on the arrest for fraud and racketeering charges of INSYS  Therapeutics founder, a "billionaire executive" in Phoenix, well-known for his work on painkiller medicines.  The history of this executive has nothing to do with my mother's pain relief medicine, but it was definitely a reminder that the pharmaceutical industry is deeply involved in pursuit of the "next" generation of painkillers.  And, of course, this article contrasts with the recent news that a different drug company is dropping R & D for a dementia drug.  Pain-killers are still "in," and dementia drugs apparently are "out."  

So, I recommend the Phoenix Magazine article!  I was particularly struck by this paragraph:    

In November, Kapoor [the Phoenix-based INSYS executive arrested by the feds] pleaded not guilty to all charges and is currently awaiting trial, along with the six other former executives, who pleaded not guilty last January. All have severed ties with INSYS, which continues to do business. In July, it received FDA approval for a new drug, Syndros, a synthetic form of THC, the psychoactive component found in cannabis, to treat chemotherapy-induced nausea and loss of appetite in AIDS patients. As it did with Subsys, the company is looking into ways to manufacture the drug as a sublingual spray. Under Kapoor, the company donated $500,000 to the effort to defeat the measure to legalize marijuana for recreational use on Arizona’s 2016 general election ballot, paving the way for the synthetic substitute.

January 8, 2018 in Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Science, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Wednesday, January 3, 2018

Monetary Penalties vs. SNFs lessened

According to a recent story in Kaiser Health News, Trump Administration Relaxes Financial Penalties Against Nursing Homes, "[t]he ... administration — reversing guidelines put in place under President Barack Obama — is scaling back the use of fines against nursing homes that harm residents or place them in grave risk of injury." According to the article, the change was requested by the industry. Is the change needed? Judge for yourself:

Since 2013, nearly 6,500 nursing homes — 4 of every 10 — have been cited at least once for a serious violation, federal records show. Medicare has fined two-thirds of those homes. Common citations include failing to protect residents from avoidable accidents, neglect, mistreatment and bedsores.

The new guidelines discourage regulators from levying fines in some situations, even when they have resulted in a resident’s death. The guidelines will also probably result in lower fines for many facilities.

Both sides have weighed in on the appropriateness of the loosening of penalties, with opponents expressing concern about reducing deterrence. The changes have been gradually occurring over the fall. "In November, the ... administration exempted nursing homes that violate eight new safety rules from penalties for 18 months. Homes must still follow the rules, which are intended, among other things, to reduce the overuse of psychotropic drugs and to ensure that every home has adequate resources to assist residents with major psychological problems."  The New York Times also ran a story about the changes, which is available here.

January 3, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink

Monetary Penalties vs. SNFs lessened

According to a recent story in Kaiser Health News, Trump Administration Relaxes Financial Penalties Against Nursing Homes, "[t]he ... administration — reversing guidelines put in place under President Barack Obama — is scaling back the use of fines against nursing homes that harm residents or place them in grave risk of injury." According to the article, the change was requested by the industry. Is the change needed? Judge for yourself:

Since 2013, nearly 6,500 nursing homes — 4 of every 10 — have been cited at least once for a serious violation, federal records show. Medicare has fined two-thirds of those homes. Common citations include failing to protect residents from avoidable accidents, neglect, mistreatment and bedsores.

The new guidelines discourage regulators from levying fines in some situations, even when they have resulted in a resident’s death. The guidelines will also probably result in lower fines for many facilities.

Both sides have weighed in on the appropriateness of the loosening of penalties, with opponents expressing concern about reducing deterrence. The changes have been gradually occurring over the fall. "In November, the ... administration exempted nursing homes that violate eight new safety rules from penalties for 18 months. Homes must still follow the rules, which are intended, among other things, to reduce the overuse of psychotropic drugs and to ensure that every home has adequate resources to assist residents with major psychological problems."  The New York Times also ran a story about the changes, which is available here.

January 3, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink

Emergency Preparedness Legislation

The National Consumer Voice for Quality Long-Term Care sent an email that emergency preparedness legislation was introduced at the end of 2017.  According to the email the bill was introduced by Florida Congresswoman Wasserman Schultz and Michigan Congressman Walberg. The bill, H.R. 4704, available here, is intended to incorporate the "emergency preparedness final rule for skilled nursing facilities and nursing facilities as conditions of participation under the Medicare and Medicaid programs, and for other purposes" into the U.S. Code. The bill would amend the Medicare and Medicaid statutes to require SNFs  and NFs by requiring alternative energy sources (for example, generators and adequate fuel to power them) for 96 hours post-disaster. Sanctions for non-compliance are monetary penalties, including increased penalties if a resident dies as a result of the facility's non-compliance. The bill includes a loan provision and a prioritization plan.

In addition to this federal legislation, Florida is also going to take up the issue of making backup generators mandatory in its 2018legislation session.

Stay tuned.

 

The bill, H.R. 4704, the Nursing Home Comfortable Air Ready for Emergencies (CARE) Act, would:

  • Codify the federal Emergency Preparedness rule that went into effect November 15, 2017 for nursing homes.
  • Mandate that facilities have in place an alternate source of energy capable of powering heating, ventilation, and air conditioning (HVAC) systems following a natural disaster for at least 96 hours.
  • Increase civil money penalties for facilities found out of compliance with CMS Requirements of Participation, including authorizing civil monetary penalties up to $100,000 for non-compliance resulting in a resident’s death.
  • Direct the Secretary of HHS to review facilities based on the Emergency Preparedness (EP) rule and publish the findings on the Nursing Home Compare website.
  • Create a loan fund for smaller facilities, or those serving more low-income residents, to come into compliance. Facilities must have a monthly rate of less than $6,000 for private rooms, or have fewer than 50 beds, to qualify.
  • Require states to prioritize nursing homes in the same manner as hospitals are prioritized in All-Hazards Public Health Emergency Preparedness and Response Plans, and to include in those plans information on how utilities plan to ensure that nursing homes return to functioning as soon as practicable following a disaster.

January 3, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations | Permalink

Thursday, December 21, 2017

Social Media Job Ads Targeted to Specific Age Groups-Discriminatory Based on Age?

The New York Times ran an interesting article that was co-researched and co-written with ProPublica,   Facebook Job Ads Raise Concerns About Age Discrimination   Target marketing is nothing new. I'm sure you all have the experience of having ads for things you might "like" pop up all over webpages you are browsing. So what about target marketing for job applicants? The article notes that a number of large corporations have "placed recruitment ads limited to particular age groups ... The ability of advertisers to deliver their message to the precise audience most likely to respond is the cornerstone of Facebook’s business model. But using the system to expose job opportunities only to certain age groups has raised concerns about fairness to older workers." This then raised the question-whether such advertising would be considered discriminatory. Facebook's response "[u]sed responsibly, age-based targeting for employment purposes is an accepted industry practice and for good reason: it helps employers recruit and people of all ages find work,” said Rob Goldman,  a Facebook vice president."

The article explains how this story came about in doing research for another story regarding political ad placement. Now litigation has started, according to the story. "[A]  class-action complaint alleging age discrimination was filed in federal court in San Francisco on behalf of the Communications Workers of America and its members — as well as all Facebook users 40 or older who may have been denied the chance to learn about job openings. The plaintiffs’ lawyers said the complaint was based on ads for dozens of companies that they had discovered on Facebook."

There are a number of social media sites used to advertise jobs, and the article notes for example  that they may require advertisers to certify compliance with non-discrimination laws. The article discusses a number of legal issues, including what, if any,  liability the social media companies may have.  It's a fascinating article that presents arguments on both sides of the issue. Check it out!

December 21, 2017 in Consumer Information, Current Affairs, Discrimination, Federal Statutes/Regulations | Permalink | Comments (0)

Thursday, December 14, 2017

"Nursing Home Compare" Subject to Errors through Self-Reporting "Inflation"

In a new article published by Xu Han (Florida Atlantic), Niam Yaraghi (University of Connecticut) and Ram Gopal (University of Connecticut), their analysis of data used over a 4 year period for nursing home ratings  in CMS' "Nursing Home Compare" system reveals key concerns.  From the abstract:

We argue that the rating system is prone to inflation in self-reported measures, which leads to biased and misleading ratings. We use the CMS rating data over 2009–2013 and the corresponding financial data reported by Office of Statewide Health Planning and Development and patients’ complaints data reported by California Department of Public Health for 1219 nursing homes in California to empirically examine the key factors affecting the star rating of a nursing home.

 

We find a significant association between the changes in a nursing home's star rating and its profits, which points to a financial incentive for nursing homes to improve the ratings. We then demonstrate that this association does not always lead to legitimate efforts to improve service quality, but instead can induce inflation in self-reporting in the rating procedure. A prediction model is then developed to evaluate the extensiveness of inflation among the suspect population based on which 6% to 8.5% of the nursing homes are identified as likely inflators. We also summarize the key characteristics of likely inflators, which can be useful for future audit.

For more, see the full article, Winning at All Costs: Analysis of Inflation in Nursing Homes' Rating System, published November 20, 2017 in the journal Production and Operations Management.

December 14, 2017 in Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicare, Statistics | Permalink | Comments (0)

Tuesday, December 5, 2017

Your Digital Property

Our friend and colleague, Professor Naomi Cahn at GW Law, sent us a link to a story published in Slate. The Digital Afterlife Is a Mess recounts the tangle created by the number of accounts a person may have, knotted up by company policies and wrapped around various laws.

Today’s world is different. Many of us have chosen to go paperless, so all of our financial statements are delivered electronically; we even file digital tax returns. Our love letters may no longer be written in ink on paper, our reading and listening and viewing interests no longer documented by hardcover books and magazines, record albums, and VCR tapes, and our photos no longer stored in boxes under out beds.

So once the digital asset owner dies, how does the executor gain access to these digital assets and further, determine their value, if any?  The article explains the hurdles, including the potential for committing a crime unwittingly by using the decedent's account and password to access digital files.  The article turns to the Uniform Act designed to address this growing problem:  the Uniform Fiduciary Access to Digital Assets Act, Revised, which has been adopted by almost 2/3 of the states.  The Act "allows a fiduciary to manage much of a decedent’s digital property, giving access to many things other than the content of electronic communications (unless this access has been limited by the user or by a court order) and even permitting access to content in certain limited situations." The article explains the 4-tiered system the Act uses for prioritizing and offers practical suggestions such as starting with inventorying your own digital assets, subscribing to an online account management program,  and include coverage of digital assets in estate planning documents.

December 5, 2017 in Consumer Information, Current Affairs, Estates and Trusts, Federal Statutes/Regulations, Property Management, State Statutes/Regulations, Web/Tech | Permalink | Comments (1)

Monday, December 4, 2017

Second Phase of Changes to Nursing Home Regs

Last year CMS released some changes to the Nursing Home regs, some of which went into effect last, year and others that recently went into effect this year in late November. Consumer Voice has released a summary of significant provisions that just went into effect. Federal Requirements of Participation for Nursing Homes: Summary of Key Changes in the Final Rule Issued September 2016 Phase 2, a 9 page document,  highlights both new rules and edited ones. For example, a new rule involves baseline care plans which have to be done within 2 days of admission. One of the modified rules going into effect involves nursing services: requiring not only enough staff, but with needed specific skills and competencies. There's also a new rule regarding nutrition staffing and competencies.

The last phase of implementation doesn't occur until Nov. 28, 2019. For a pdf of the summary of key changes, click here.

December 4, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0)

Friday, December 1, 2017

More on Nursing Homes and Disasters

We've been blogging about the fire at the SNF in Pennsylvania and the SNF in Florida during Irma.  Here's an update on the Florida SNF in South Florida. Health News Florida reports that 12 of the 14 deaths are being classified as homicides. 12 Of 14 Nursing Home Deaths After Irma Ruled Homicides  reports that

Authorities say the deaths of 12 of the 14 Florida nursing home patients who died after Hurricane Irma have been ruled homicides.

The Sun Sentinel reports that autopsy results from the Broward County medical examiner's office were released Wednesday.

No arrests have been made. Police spokeswoman Miranda Grossman says the investigation will continue and part of that will be determining who should be charged.

The article also notes that 2 deaths have been determined not to be related from the lack of air conditioning or electricity.

December 1, 2017 in Consumer Information, Crimes, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, November 30, 2017

Questions Arise With Evictions of Residents from Continuing Care (Life Plan) Communities

Recently I wrote about a high profile suit filed by AARP attorneys on behalf of residents at a California skilled care (nursing home) facility to challenge evictions.  

I've also been hearing about more attempts to evict residents from  Continuing Care Communities, also known as CCRCs or Life Plan Communities.   For example, in late 2016 a lawsuit was filed in San Diego County, California alleging a senior's improper eviction from a high-end CCRC.  The woman reportedly paid a $249k entrance fee, plus additional monthly fees for 15 years.  When she reached the age of 93, however, the CCRC allegedly evicted her for reasons unconnected to payment. The resident's diagnosis of dementia was an issue.  Following negotiations, according to counsel for the resident, Kelly Knapp, the case reportedly settled recently on confidential terms.  

Is there a trend?  Are more CCRC evictions happening, and are they more often connected to a resident's diagnosis of dementia and/or the facility's response to an increased need for behavioral supervision?  If the answer is "yes," then there is a tension here, between client expectations and marketing by providers.  Such tension is unlikely to be good news for either side.    

CCRCs are often viewed by residents as offering a guarantee of life-time care. Even if any promises are conditional, families would not usually expect that care-needs associated with aging would be a ground for eviction.  

The resident and family expectations can be influenced by pricing structures that involve substantial up-front fees (often either nonrefundable or only partially refundable), plus monthly fees that may be higher than cost-of-living alone might explain.  Marketing materials -- indeed the whole ambiance of CCRCs -- typically emphasize a "one stop shopping" approach to an ultimate form of senior living.      

In one instance I reviewed recently, the materials used for incoming residents explained the pricing with a point system. The prospective resident was told that in addition to the $100+k entrance fee, an additional daily fee could increase as both "medical and non-medical" needs increased.  A resident who "requires continual and full assistance of others . . . is automatically Level C" and billed at a higher rate. The graded components included factors such a need for assistance with "cognition, mood, or behavior," or "wandering."  All of that indicates dementia care is part of the "continuing" plan.

CCRCs, on the other hand, may turn to their contract language as grounds for an eviction. Contracts may have language that attempts to give the facility sole authority to make decisions about a resident's "level" of care.  Sometimes that authority is tied to decisions about "transfers" from independent living to assisted living or to skilled care units within the same CCRC, as the facility sees care needs increasing.  Even same-community transfer decisions can sometimes be hard for families. Complete evictions can be even harder to accept, especially if it means a married couple will be separated by blocks or even miles, rather than hallways in the same complex.

Continue reading

November 30, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Tuesday, November 28, 2017

Identity Theft and the IRS

Regular readers of this blog know that I will periodically post about identity theft, hacking, etc. even though not specifically elder law issues. With the end of the year looming, I thought it timely to write about a new report from the GAO,  Identity Theft: Improved Collaboration Could Increase Success of IRS Initiatives to Prevent Refund Fraud

The GAO website offers a podcast,  highlights,  recommendations, fast facts and the full report. Here are the highlights:

The Internal Revenue Service (IRS) launched an Identity Theft Tax Refund Fraud Information Sharing and Analysis Center (ISAC) pilot for the 2017 filing season. It aims to allow IRS, states, and tax preparation industry partners to quickly share information on identity theft (IDT) refund fraud. The ISAC pilot includes two components: an online platform run by IRS to communicate data on suspected fraud, and an ISAC Partnership, a collaborative organization comprised of IRS, states, and industry, which is intended to be the governance structure. As of November 2017, the ISAC had 48 members: 31 states (including full members and those receiving alerts only), 14 tax preparation companies, and 3 financial institutions. In addition, IRS is using a Rapid Response Team (RRT) in partnership with states and industry members to coordinate responses to IDT refund fraud incidents that pose a significant threat within 24 to 72 hours of being discovered. IRS deployed the RRT for six incidents in 2016 and once in 2017.GAO found that the ISAC pilot aligns with key aspects of all five leading practices for effective pilot design GAO previously identified, but none fully. For example, IRS has worked to incorporate stakeholder input, but its message about the ISAC's benefits has not fully reached states. Further, IRS does not have criteria for assessing whether the pilot's objectives have been met. Without this assessment and better alignment with leading practices, IRS, its partners, and Congress will have difficulty determining the effectiveness of the pilot and whether to implement it more broadly.

Given the number of folks whose personal identifying information was stolen in the Equifax hack, let's hope that the IRS efforts are effective. Stay tuned.

November 28, 2017 in Consumer Information, Crimes, Current Affairs, Federal Statutes/Regulations, Other | Permalink | Comments (0)

Sunday, November 26, 2017

Actions by Attorneys and Their Investigators Trigger Sanctions Affecting the Underlying False Claims Act Suit

A decision earlier this year in a qui tam suit, alleging the submission of false claims to Medicare for the off-label prescription of a drug for dementia, seems especially interesting in light of recent high profile allegations involving Harvey Weinstein's alleged use of private investigators to befriend his victims  in order gather information.  

In the qui tam suit the drug in question was Namenda, described in the opinion as "approved by the FDA  for treatment of moderate to severe Alzheimer's disease," but allegedly also promoted illegally by the companies for prescription to individuals with milder stages of dementia.  In Leysock v. Forest Laboratories, et al, the United States District Court in Massachusetts dismissed the complaint as a sanction for conduct by the plaintiff's attorneys and the investigator hired by those attorneys:  

The present dispute arises out of the conduct of counsel for relator, the Milberg law firm, in investigating the case. As set forth below, Milberg attorneys engaged in an elaborate scheme of deceptive conduct in order to obtain information from physicians about their prescribing practices, and in some instances about their patients. In essence, Milberg retained a physician and medical researcher, Dr. Mark Godec, to conduct a survey of physicians concerning their prescription of Namenda to Medicare patients. In order to obtain the cooperation of the physicians, Dr. Godec falsely represented that he was conducting a medical research study. Dr. Godec, at Milberg's direction, conducted two internet-based surveys as well as follow-up telephone interviews. Among other things, the physicians were induced to provide patient medical charts and other confidential medical information to Dr. Godec. Information derived from those surveys was then set out in the Second Amended Complaint in this action, and was relied on by the Court in denying defendant's motion to dismiss in 2014.

 

Defendants have now moved to dismiss the Second Amended Complaint as a sanction for alleged violations of attorney ethical rules. For the reasons stated below, that motion will be granted.

Continue reading

November 26, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Friday, November 17, 2017

New Lessons to Emerge from Philadelphia-Area Nursing Home Fire?

In Pennsylvania, we awoke today to news media images of flames shooting into the night sky from a nursing home near Philadelphia.  I suspect many of us feared the worst outcome, including serious injuries to helpless residents, or worse.  In the region, wooden structures, narrow streets, and densely populated neighborhoods are the norm.    

But, although we are still in the early aftermath of the fire which reportedly ignited around 10:30 at night in a dementia care unit, evacuations occurred swiftly and with the help of the entire community, including college students who joined in the effort.  As my blogging colleague has pointed out recently in the context of hurricanes, often the real impact for seniors displaced by emergencies occurs in the days or even weeks after the event.  Let's hope we hear positive news about "best practices" in this instance.  Lesson number one may involve whether sprinklers in the building operated appropriately.

From one early news account: 

https://youtu.be/8UhX3Bo93Og

 

 

November 17, 2017 in Consumer Information, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Property Management, State Statutes/Regulations | Permalink | Comments (0)

"Evictions" of Nursing Home Residents Trigger Lawsuits

The issue of "evictions" in residential facilities for older adults has long been on my radar screen, and I was especially interested to hear (and read) news of a lawsuit initiated by the AARP Foundation Litigation (AFL) against a California skilled nursing facility and its parent entity following the facility's refusal to "readmit" an 82 year-old resident following her temporary hospital stay.  As reported by NPR for All Things Considered on November 13, 2017: 

[The Defendants] say that she became aggressive with staff and threw some plastic tableware. So Pioneer House called an ambulance and sent her to a hospital for a psychological evaluation. The hospital found nothing wrong with her, but the nursing home wouldn't take her back. They said they couldn't care for someone with her needs.  Jones protested his mother's eviction to the California Department of Health Care Services. The department held a hearing. Jones won.

 

"I expected action — definitely expected action," says Jones.  Instead, he got an email explaining that the department that holds the hearings has no authority to enforce its own rulings. Enforcement is handled by a different state agency. He could start over with them.

 

This Catch-22 situation attracted the interest of the legal wing of the AARP Foundation. Last year, attorneys there asked the federal government to open a civil rights investigation into the way California deals with nursing home evictions. Now, they're suing Pioneer House and its parent company on Gloria Single's behalf. It's the first time the AARP has taken a legal case dealing with nursing home eviction.

For more, read AARP Foundation Sues Nursing Home to Stop Illegal Evictions.  

My thanks to my always alert colleague, Dickinson Law Professor Laurel Terry, for sharing this item.  

November 17, 2017 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, November 15, 2017

Palliative Care and Serious Illnesses

The National Academies of Sciences, Engineering, and Medicine released a new report Models and Strategies to Integrate Palliative Care Principles into Care for People with Serious Illness: Proceedings of a Workshop The website explains the purpose of the workshop

The Roundtable on Quality Care for People with Serious Illness hosted a full-day workshop on April 27, 2017 to explore Models and Strategies to Integrate Palliative Care Principles into Care for People with Serious Illness. The workshop aimed to highlight innovative models of community-based care for people of all ages facing serious illness. The workshop featured invited presentations and panel discussions exploring community-based palliative care from a population health management perspective as well as a health system perspective; pediatric palliative care, concurrent care, and palliative care within the context of a multispecialty accountable care organization; potential policy levers, as well as the challenges and opportunities to scale and spread successful palliative care models and programs. The workshop rapporteurs have prepared this proceedings as a factual summation of the workshop presentations and discussions.

Here is an excerpt from the introduction

Remarkable developments in health promotion and disease treatment and prevention have led to significant improvements in life expectancy throughout the 20th century and into the present. Concurrent with those improvements has been the reality that most Americans will experience a substantial period of time living with serious illness; an estimated 45 million Americans currently are living with one or more chronic conditions (IOM, 2015; NASEM, 2016). Those living with serious illness can be found across the age spectrum and in a broad range of care settings, from pre-birth to geriatric care. Recognizing the need to thoughtfully consider and address the challenges and opportunities to improve care for people of all ages and all stages of a serious illness, the Roundtable on Quality Care for People with Serious Illness serves to convene stakeholders from government, academia, industry, professional associations, nonprofit advocacy organizations, and philanthropies. Inspired by and expanding on the work of the 2014 Institute of Medicine consensus study report Dying in America: Improving Quality and Honoring Individual Preferences Near the End of Life (IOM, 2015),2 the Roundtable aims to foster ongoing dialogue about critical policy and research issues to accelerate and sustain progress in care for people of all ages experiencing serious illness.

The publication can be read online here or downloaded for free as a pdf.  It can also be purchased as a paperback for $45. 

 

 

 

November 15, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Programs/CLEs | Permalink | Comments (0)

Shortages of Specialists to Screen and Diagnose Early Stages of Neurocognitive Diseases Are Part of the Looming Problem

A recent study by the Rand Corporation points to related problems with diagnosis AND  treatment of Alzheimer's Disease and other neurocognitive disorders. Even as there is a growing need for effective treatment, there are "too few medical specialists to diagnose patients who may have early signs of Alzheimer's" and thus become eligible for therapies that might slow or or halt progression of such diseases.   From the Rand news release:  

“While significant effort is being put into developing treatments to slow or block the progression of Alzheimer's dementia, little work has been done to get the medical system ready for such an advancement,” said Jodi Liu, lead author of the study and a policy researcher at RAND, a nonprofit research organization. “While there is no certainty an Alzheimer's therapy will be approved soon, our work suggests that health care leaders should begin thinking about how to respond to such a breakthrough.”

 

An estimated 5.5 million Americans live with Alzheimer's dementia today, with the number projected to increase to 11.6 million by 2040.

 

Advanced clinical trials are underway for at least 10 investigational therapies that have shown promise in slowing or blocking development of Alzheimer's disease. Researchers say the progress provides guarded optimism that a disease-modifying therapy could become available for routine use within a few years.

 

Liu and her team examined the pathway patients would likely take to receive an Alzheimer's therapy and created a model to simulate the pressures that such an approved therapy would put on the health care system.

 

The analysis assumes that a therapy is approved for use beginning in 2020 and screening would begin in 2019, although researchers stress that the date was chosen only as a scenario for the model, not as a prediction of when a therapy may be approved.

 

Under such a scenario, about 71 million Americans aged 55 and older would have to be screened for signs of mild cognitive impairment. After follow-up examinations and imaging to confirm evidence of Alzheimer's, the RAND analysis estimates 2.4 million people ultimately could be recommended for treatment.

For additional analysis, see The Washington Post's article from its Business Section, We're So Unprepared for Finding An Alzheimer's Treatment. 

Special thanks to George Washington Law Professor (and friend) Naomi Cahn for making sure we did not miss this item.  

November 15, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Science | Permalink | Comments (0)