Thursday, September 29, 2016

More on the Reg Change Regarding Pre-Dispute Arbitration Clauses for Nursing Homes

I blogged yesterday about the new and updated regs for nursing homes and highlighted a few changes. One that is getting attention is the reg regarding pre-dispute arbitration clauses, mentioned in yesterday's post. The NY Times ran an article, U.S. to Bar Arbitration Clauses in Nursing Home Contracts offers some examples of individuals who were injured but not able to seek redress in the courts.   The article notes that this is the first significant revision to the FNHRA regs in a while, and also another federal agency moving to limit the use of arbitration clauses. "It is the most significant overhaul of the agency’s rules governing federal funding of long-term care facilities in more than two decades...And the new rule is the latest effort by the Obama administration to rein in arbitration’s parallel system of justice that was quietly built over more than a decade...In May, the Consumer Financial Protection Bureau, the nation’s consumer watchdog, unveiled the draft of a rule that would prevent credit card companies and other financial firms from using arbitration clauses that bar consumers from banding together in a class-action lawsuit." The article also references prior stories by the Times that focused on arbitration, the links to which are available at the end of the story.

September 29, 2016 in Consumer Information, Crimes, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Wednesday, September 28, 2016

Important: CMS Issues FInal Rules on Requirements for LTC Facilities

The Federal Nursing Home Reform Act went into effect back in 1987. Those accompanying regs have been in place a long time. Now CMS has issued final rules that revise the LTC regs.  The official publication date is Oct. 4, 2016.  The regs are being implemented in phases, with phase one going into effect on November 28, 2016.  Here is the Federal Register summary:

This final rule will revise the requirements that Long-Term Care facilities must meet to participate in the Medicare and Medicaid programs. These changes are necessary to reflect the substantial advances that have been made over the past several years in the theory and practice of service delivery and safety. These revisions are also an integral part of our efforts to achieve broad-based improvements both in the quality of health care furnished through federal programs, and in patient safety.

The regs are over 700 pages and are available here. Here are the effective dates: "Phase 1 must be implemented by November 28, 2016... Phase 2 must be implemented by November 28, 2017 ... Phase 3 must be implemented by November 28, 2019 ...  A detailed discussion regarding the different phases of the implementation timeline can be found in Section B. II 'Implementation Date.'"

42 C.F.R. 483.10 is updated but CMS is "retaining all existing residents’ rights and updating the language and organization of the resident rights provisions to improve logical order and readability, clarify aspects of the regulation where necessary, and updating provisions to include advances such as electronic communications."

There's a new reg, 42. C.F.R. 483.21, "Comprehensive Person-Centered Care Planning" wherein CMS, among other things, is "requiring facilities to develop and implement a baseline care plan for each resident, within 48 hours of their admission,  the instructions needed to provide effective and person-centered care that meets professional standards of quality care."

One of the most watched sections involved the use of arbitration clauses. 42 C.F.R. 483.70 now includes, among other things, the following: "Binding Arbitration Agreements: We are requiring that facilities must not enter into an agreement for binding arbitration with a resident or their representative until after a dispute arises between the parties. Thus, we are prohibiting the use of pre-dispute binding arbitration agreements."

This is just a brief overview of a few provisions. We'll blog about more of them later, but for now, be sure to read the new regs. They're important!

P.S. this post has been updated to correct the publication and effective dates (I was too excited)

September 28, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Tuesday, September 27, 2016

Kindred Health Care Inc. Hit With Sanctions for Failure to Comply with Federal Settlement Terms on Hospice Care

Kindred Healthcare Inc., the nation's largest post-acute care provider (after acquiring Gentiva Healthcare in 2015) recently paid more than $3 million to the federal government as sanctions for inaccurate billing practices under Medicare for hospice services.  That may not sound like a lot of money in this day and age of Medicare and Medicaid fraud cases, right?  After all, North American Health Care Inc. reportedly settled a false claims case with the Department of Justice earlier this month in a rehabilitation services investigation by agreeing to pay $28 million

But, the Kindred Health Care sanction is actually a penalty for failing to comply with the terms of a previous multimillion dollar settlement by the feds with Gentiva.  As part of that settlement, the company and its successors agreed to comply with a Corporate Integrity Agreement (CIA).  From the Office of Inspector General, Department of Health and Human Services press release:

It is the largest penalty for violations of a CIA to date, the Office of Inspector General (OIG) said.

 

The record penalty resulted from Kindred's failure to correct improper billing practices in the fourth year of the five-year agreement. OIG made several unannounced site visits to Kindred facilities and found ongoing violations. "This penalty should send a signal to providers that failure to implement these requirements will have serious consequences," Mr. Levinson said. "We will continue to closely monitor Kindred's compliance with the CIA."

 

OIG negotiates CIAs with Medicare providers who have settled allegations of violating the False Claims Act. Providers agree to a number of corrective actions, including outside scrutiny of billing practices. In exchange, OIG agrees not to seek to exclude providers from participating in Medicare, Medicaid, or other Federal health care programs. CIAs typically last five years.

The post-acute care world -- which includes hospice, nursing homes, rehabilitation and home care -- is a tough marketplace.  According to a McKnight News report, Kindred is also closing some 18 sites as "underperforming."  For more on Kindred's operations, including its explanation of the penalty as tied to pre-acquisition practices of Gentiva, see this article in Modern Healthcare, "Kindred Pays Feds Largest Penalty Ever Recorded for Integrity Agreement Violations."

September 27, 2016 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Monday, September 26, 2016

Home Care Workers at the Very Heart of Debates about Overtime Pay and Minimum Wage

Home care workers have many different titles and roles, but a common problem for all is the rate of pay.  Many work long "block" shifts of 10 or more hours at a time.  Many are employed by agencies that charge clients $20+ per hour while paying the workers less than half that rate. Home care agencies typically offer no or minimal benefits.   At the same time, for families facing the prospect of care for elderly parents or grandparents, increasing the hourly rate and/or mandating overtime rates can quickly become unaffordable. Home care is often not covered by insurance, especially if the care is not deemed to be "medically necessary." 

The New York Times recently offered a portrait of the problems, beginning with evidence the average hourly rate for home care workers has actually gone down -- from a national median of $10.21 (adjusted for inflation) in 2005 to $10.11 in 2016: 

This helps explain why Patricia Walker, 55, a certified nursing assistant who works for a Tampa home care agency and provides care for two older men — and hasn’t received a raise in five years — must rely on $194 in food stamps each month.

 

“It helps me a lot, because I don’t have to wait for my paycheck to buy food,” she told me.

 

Still, working only 16 hours a week while hoping for more, at $10 an hour, means she can’t afford a place to live. “I would love to be able to put a key in my own door and know this is mine,” she said.

Instead, she pays friends $50 every other week to rent a room in their apartment.

Home care aides, mostly women and mostly of color, represent one of the nation’s fastest-growing occupations, increasing from 700,000 to more than 1.4 million over the past decade. Add the independent caregivers that clients employ directly through public programs, and the total rises to more than two million.

For more, read As Their Numbers Grow, Home Care Aides Are Stuck at $10.11.

September 26, 2016 in Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (1)

Tuesday, September 20, 2016

Thinking about Consumer Protection, Families, and Older Clients in Banking

I'm currently on sabbatical and working on a couple of big projects. I've been digging deeper into how banks approach consumer protection issues for older customers.  Awareness of the potential for financial exploitation of elders among bankers is clearly at an all-time high.  

One of the practical lessons, however, is that each banking institution does it differently when responding to concerns.  For example, one bank I met with has a system of "alerts" for tellers about prospective transactions, such as where an older customer is accompanied into the bank by "problematic" befrienders. Another bank said that before it could take any action in response to a request made by a valid agent with a broadly-worded power of attorney, the agent would have to be added as a party "on" the account in question.  The latter approach, although understandable on one level, seems to pose the potential for additional problems. One-on-one meetings with high-level officials at major banks makes me realize just how challenging this would be for the average family member or concerned friend of a prospective victim.

Along this line, I recently received news of a timely CLE program.  The Pennsylvania Bar Institute is hosting an "update" program on Consumer Financial Services and Banking Law on October 18, with simulcasts offered in several locations around Pennsylvania.  The Pennsylvania Bankers Association is co-hosting the program.  

Speakers include:

 

Hon. Robin L. Wiessmann
Secretary, PA Department of Banking and Securities

 

Leonidas Pandeladis, Esq.
Chief Counsel, PA Department of Banking and Securities

 

Jeffrey P. Ehrlich, Esq.

Deputy Enforcement Director, Consumer Financial Protection Bureau, Washington, DC

The planned program will include updates on the latest rules affecting consumer protection measures, and -- I suspect -- will likely address some of the "hot" issues, such as the Wells Fargo "mess.

Related articles

September 20, 2016 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Monday, August 29, 2016

PACE For Profits

PACE programs can be a great thing for certain Medicare beneficiaries, but the popularity of PACE programs hasn't seemed to grow as much as one might think. The New York Times ran a story on August 20, 2016 about the for-profit model for PACE programs. Private Equity Pursues Profits in Keeping the Elderly at Home explains  that "[u]ntil recently, only nonprofits were allowed to run programs like these. But a year ago, the government flipped the switch, opening the program to for-profit companies as well, ending one of the last remaining holdouts to commercialism in health care. The hope is that the profit motive will expand the services faster."  Is there a significant demand for PACE programs with the Boomers doing their aging thing?  Is a for-profit model the way to go to provide the type of services needed by PACE participants?

The article discusses these issues and presents both sides.  Recall that "[t]he goal of the program, known as PACE, or the Program of All-Inclusive Care for the Elderly, is to help frail, older Americans live longer and more happily in their own homes, by providing comprehensive medical care and intensive social support. It also promises to save Medicare and Medicaid millions of dollars by keeping those people out of nursing homes."

The article also discusses the possible role of tech in providing care, but notes the importance of socialization. CMS had a pilot before approving the for-profit model and is going to keep an eye on things.

The for-profit centers were approved, to little fanfare, after the Department of Health and Human Services submitted the results of a pilot study to Congress in June 2015. The demonstration project, in Pennsylvania, showed no difference in quality of care and costs between nonprofit PACE providers and a for-profit allowed to operate there.

The Centers for Medicare and Medicaid Services has vowed to closely track the performance of all PACE operators by measuring emergency room use, falls and vaccination rates, among other metrics. The National PACE Association, a policy and lobbying group, is also considering peer-reviewed accreditation to help safeguard the program. Oversight is now largely left to state Medicaid agencies.

Stay tuned.

August 29, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Friday, August 26, 2016

The CNA Conundrum: Background Checks, Continuing Education & Licensure

The long-term care industry depends hugely on the services of "nursing assistants," also known as NAs, who provide basic but important care for residents or patients under the direction of nursing staff (who, in turn, are usually Licensed Practical Nurses or Registered Nurses). As the U.S.Department of Labor describes, NAs typically perform duties such as changing linens, feeding, bathing, dressing, and grooming of individuals. They may also transfer or transport residents and patients. Employers may use other job titles for NAs, such as nursing care attendants, nursing aides, and nursing attendants. However, the Department of Labor makes a distinction between NAs and other key players in long-term care, including "home health aides," "orderlies," "personal care aides" and "psychiatric aides." 

According to DOL statistics, the top employers of NAs include skilled nursing facilities (37% of NAs), continuing care retirement communities and assisted living facilities (together employing some 18% of NAs), and hospitals and home care agencies, which each employ about 6% of the NA workforce.  

For many years, states have offered licensing for nursing assistants.  The designation of CNA or "certified nursing assistant" meant that the nursing assistant had satisfied a minimum educational standard and had successfully passed a state exam.  As another key protection for vulnerable consumers, CNAs had to pass background checks, involving fingerprints and criminal history searches.

In Arizona, however, now I'm hearing a new label:  LNAs or Licensed Nursing Assistants.  The Arizona Board of Nursing continues to license CNAs, but now it is offers the designation of Licensed Nursing Assistants. What's the difference?  Frankly, not much, at least in terms of skill levels. Then why the change?

In Arizona, CNAs and LNAs have the same educational requirements, and must pass the same test and satisfy the same work credits. But, as of July 1, 2016, individuals seeking the LNA designation will be required to pay the state a fee to cover their mandatory background checks, including fingerprinting.  CNAs, however, will no longer be required to undergo background checks or fingerprinting.  

What is this about? Arizona is trying to save money.  It seems that state and federal laws prohibit state authorities from mandating that CNA candidates cover the cost for their own background checks.  In other words, if the candidate showed financial need in the application process, the state was required to pick up the costs for any background checks. Let's remember that the average wages of CNAs are relatively low -- the national mean is less than $30,000 per year. Presumably that is the reason behind the older laws limiting how much states can charge CNA applicants for their own background checks. By creating a new designation, LNA, Arizona takes the position it avoids the federal restriction.

But, what about the public?  Will the public understand that CNAs licensed after July 1, 2016 will not be subject to fingerprinting and background checks?   Responsible employers would, presumably, require such checks or limit their hires to LNAs.   At least, let's hope so.

I also learned that apparently Arizona does not require "continuing" education for either CNAs or LNAs.  (Again, you would hope that responsible employers would either provide or require such education.)  Arizona used to require a minimum of 120 hours every 2 years of what are, in essence, "job credits" -- i.e., proof of employment in an NA position -- to maintain the CNA license.  Recently, however, Arizona diluted that requirement to just 8 hours every two years for both CNAs and LNAs.  

Arizona does have a useful website where current or prospective employers, including families, can check the licensing status of CNAs or LNAs. The website is searchable by name or license number, and shows whether an applicant has failed the entrance exam, or has withdrawn an application or lost the license.  

Are other states creating this LNA designation as a "workaround" (loophole?) for financing background checks for CNAs?  Let us know!  

August 26, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Thursday, August 25, 2016

Washington Post: Legal Counsel for the Elderly Is Part of One Woman's Story

The Washington Post has a fascinating piece about Wanda Witter's decades-long battle with the Social Security Administration. At the age of 80, Wanda's story appears to be one of success, after many years of living in shelters and on the streets of D.C..  

At the shelters all those years, Witter tried to get someone to listen to her. She explained at different offices providing homeless services that those suitcases contained the evidence. She was owed money, lots of money, and she could prove it.

 

Witter is not a particularly warm or outgoing person. She isn’t rude, just direct. And suspicious of just about everyone. And obsessed with Social Security.

 

“They kept sending me to mental counselors. I wasn’t crazy. I wasn’t mentally ill,” she said.

With the help of the Washington Legal Clinic for the Homeless, Legal Counsel for the Elderly (LCE) and a dedicated, patient and persistent social worker, Julie Turner, it appears that Ms. Witter is now in her own apartment and will receive some $100,000 in back Social Security payments.  

For the full story, read "'I Wasn't Crazy.' A Homeless Woman's Long War to Prove the Feds Owe Her $100,000."  

August 25, 2016 in Ethical Issues, Federal Statutes/Regulations, Housing, Legal Practice/Practice Management, Social Security | Permalink | Comments (0)

Tuesday, August 23, 2016

Philadelphia to Host the 27th Annual National Adult Protective Service Assoc Conference, August 29-31

Recently I received an email reminder from ElderLawGuy Jeff Marshall that Pennsylvania is hosting this year’s National Adult Protective Service Association (NAPSA) Conference from August 29 through 31 at the Loews Hotel in Philadelphia. The conference will feature many of the nation’s leading adult protective services professionals who will share their ideas, expertise and creative approaches, with workshop sessions for brainstorming application of new ideas. More details, including information about CLE credits, are available here. Immediately following the NAPSA conference, in the same Philadelphia location, is the 7th Annual Summit on Elder Financial Exploitation, on September 1.

These national meetings come at a time when elder abuse and elder justice have been the subject of growing attention in Pennsylvania, as well as around the nation.  It seems fitting that Philadelphia is hosting the national meeting, as it follows a months-long Task Force analysis of the role of Pennsylvania court systems in helping to protect at-risk seniors or other vulnerable adults.  

Thanks, Jeff!  

August 23, 2016 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, August 19, 2016

You're Dead When SSA Says You're Dead---Even if You Are Not!

We have all heard stories about SSA determining that a beneficiary is dead, when the beneficiary isn’t. Proving you are very much alive has to be a fun experience (just joking in case anyone from SSA is reading this blog). Usually the stories about someone being “SSA-dead” is limited to a person. The Washington Post recently ran a story about a group of beneficiaries being declared dead by SSA. Dead or alive? Social Security misclassified some explains “Social Security officials have discovered 90 cases in their records where the living were listed as deceased.  That’s 90 “as of today,” Mark Hinkle, an SSA spokesman, said late Thursday. “We are not yet sure how many were in error.” The 90 are from a group of 19,000 cases.” Note that means more of the 19,000 may be “SSA-dead”.

There is some humor in all of this (the 90 of you declared SSA-dead, my sympathies (no pun intended folks--sympathies for the hassle) and really I’m not making light of your situation). “Ironically, the erroneous cases are from pilot projects in Virginia, North Dakota and South Dakota, designed “to enhance the quality of our death records,” Hinkle said. … Clearly, there is more work to be done on that point.”

Clearly this is no laughing matter if you are one of those declared dead-there are significant financial implications, including a loss of benefits. Plus other federal agencies get death info from SSA, so the impact is more widespread than just SSA. SSA is on it, and as for those other folks who may be SSA-dead and not know it, “SSA plans to send letters to the 19,000 people potentially affected with information on how to find out if the agency thinks they are dead and how to correct the record if that’s the case.”

I’m just saying, if you live in VA., ND or SD and get a letter from SSA in your mailbox, you may want to sit down before you open it…

August 19, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Retirement, Social Security | Permalink | Comments (0)

Tuesday, August 2, 2016

HHS Guidance for Care in the Most Integrated Setting

Health and Human Services (HHS) Office for Civil Rights issued guidance in late May, 2016 for long term care facilities. The guidance, Guidance & Resources for Long Term Care Facilities: Using the Minimum Data Set to Facilitate Opportunities to Live in the Most Integrated Setting " is on using the minimum data set (MDS) so "residents receive services in the most integrated setting appropriate to their needs."

There are 3 recommendation sections  of the guidance (actually there are 4, but the 4th deals with further resources).  Why did OCR issue this guidance?

OCR has found that many long term care facilities are misinterpreting the requirements of Section Q of the MDS. This misinterpretation can prevent residents from learning about opportunities to transition from the facility into the most integrated setting. We are therefore providing a series of recommendations for steps that facilities can take to ensure Section Q of the MDS is properly used to facilitate the state’s compliance with Section 504 and to avoid discrimination.

The recommendations include a discussion of the importance of knowing about local resources and community based services, ensuring compliance with applicable civil rights laws ("[b]ecause Section Q is designed to assist residents in returning to the community or another more integrated setting appropriate to their needs, proper administration of Section Q of the MDS can further a state’s compliance with civil rights laws.") and the importance of maintaining up-to-date policies and procedures, and training employees.

 

 
 
 

August 2, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Tough Talk about Health Care Fraud

McKnight's News is a publication for insiders in the long-term care industry, reaching professionals who operate nursing homes, extended care sites, CCRCs and more. John O'Connor, who has been with McKnight's for more than 20 years, recently published  a candid editorial about factors affecting health care fraud in the industry.  He writes:

[G]iven how easy it is to cheat these days, we probably shouldn't be terribly surprised that so many operators give in to temptation. That's especially the case when it comes to invoice preparations. 

 

Let's be honest: How hard is it to put a resident in a higher RUGs category than is probably accurate? Or to bill for therapy services that were not actually delivered? Or to have therapists working overtime doing services that never should have occurred in the first place? And that, my friends, is just the tip of the proverbial iceberg.

 

Throw in stiff competition, incentives that reward upcoding, a dearth of interested investigators and good old-fashioned human greed, and what we have here is a breeding ground for creative accounting.

For more, read "It's Time for 'The Talk' About Healthcare Fraud."  

August 2, 2016 in Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Sunday, July 31, 2016

Explaining Special Needs Trusts

Raymond James wealth management group has published a 5 page document for clients that explains special needs trusts.  Special Needs Trusts Providing for a Family Member with a Disability or Special Needs provides an overview of SNTs, the types of SNTs, how they work, and how they are managed. (I know that there are many such documents out there, and many are designed for the organization's clients.) I thought the graphics in this one were useful, so I'm passing on the info to you, for what it's worth.  (Full disclosure, one of our alums is the Chief Trust Officer for Raymond James). 

If you have run across any similar documents that you think are useful, let us know. After all, it's August, which means it is time for us to begin thinking about the beginning of the fall semester...and reading assignments for students.

 

July 31, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0)

Thursday, July 28, 2016

Medicare Part D 10 Essential Facts

Kaiser Family Foundation (KFF) published 10 Essential Facts About Medicare and Prescription Drug Spending on July 7, 2016. Here are some of the 10 facts, in no particular order.

  • "Medicare accounts for a growing share of the nation’s prescription drug spending: 29% in 2014 compared to 18% in 2006, the first year of the Part D benefit."
  •  "Prescription drugs accounted for $97 billion in Medicare spending in 2014, nearly 16% of all Medicare spending that year."
  • "Medicare Part D prescription drug spending – both total and per capita – is projected to grow more rapidly in the next decade than it did in the previous decade."
  • "As a result of the Affordable Care Act (ACA), Medicare beneficiaries are now paying less than the full cost of their drugs when they reach the coverage gap (aka, the “doughnut hole”) and will pay only 25% by 2020 for both brand-name and generic drugs."
  • "High and rising drug costs are a concern for the public, and many leading proposals to reduce costs for all patients – including Medicare beneficiaries – enjoy broad support."

To read all 10 facts and review the corresponding charts and explanations, click here.

July 28, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Monday, July 25, 2016

Who Spends Most on End of Life Care?

The answer might surprise you.  It turns out that the older the person, the less the person spends Kaiser Family Foundation reports in a recently released Medicare data note. Medicare Spending at the End of Life: A Snapshot of Beneficiaries Who Died in 2014 and the Cost of Their Care was published July 14, 2016.

Of the 2.6 million people who died in the U.S. in 2014, 2.1 million, or eight out of 10, were people on Medicare, making Medicare the largest insurer of medical care provided at the end of life. Spending on Medicare beneficiaries in their last year of life accounts for about 25% of total Medicare spending on beneficiaries age 65 or older. The fact that a disproportionate share of Medicare spending goes to beneficiaries at the end of life is not surprising given that many have serious illnesses or multiple chronic conditions and often use costly services, including inpatient hospitalizations, post-acute care, and hospice, in the year leading up to their death. (footnotes omitted)

The authors examine the data on a number of points, with explanations and corresponding charts. Among their findings

Our analysis shows that Medicare per capita spending for beneficiaries in traditional Medicare who died at some point in 2014 was substantially higher than for those who lived the entire year, as might be expected. It also shows that Medicare per capita spending among beneficiaries over age 65 who die in a given year declines steadily with age. Per capita spending for inpatient services is lower among decedents in their eighties, nineties, and older than for decedents in their late sixties and seventies, while spending is higher for hospice care among older decedents. These results suggest that providers, patients, and their families may be inclined to be more aggressive in treating younger seniors compared to older seniors, perhaps because there is a greater expectation for positive outcomes among those with a longer life expectancy, even those who are seriously ill.

In addition, we find that total spending on people who die in a given year accounts for a relatively small and declining share of traditional Medicare spending. This reduction is likely due to a combination of factors, including: growth in the number of traditional Medicare beneficiaries overall as the baby boom generation ages on to Medicare, which means a younger, healthier beneficiary population, on average; gains in life expectancy, which means beneficiaries are living longer and dying at older ages; lower average per capita spending on older decedents compared to younger decedents; slower growth in the rate of annual per capita spending for decedents than survivors, and a slight decline between 2000 and 2014 in the share of beneficiaries in traditional Medicare who died at some point in each year.

The report is also available as a pdf here.

July 25, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Sunday, July 17, 2016

Fall Prevention: Personal Attention vs. Assistive Alerts?

Do alarms lead nurses in SNFs to interact less with residents? Do the alarms help prevent falls? According to a New York Times article from July 2, 2016,  there is a movement away from "things" to help with falls and toward an emphasis on human care.  Nursing Homes Phasing Out Alarms to Reduce Falls explains there is "a nationwide movement to phase out personal alarms and other long-used fall prevention measures in favor of more proactive, attentive care. Without alarms, nurses have to better learn residents' routines and accommodate their needs before they try to stand up and do it themselves." Over time prevention moved from restraints to alarms, floor mats, etc. and now prevention is moving from those to personal attention. This change is based on " a growing body of evidence indicates alarms and other measures, such as fall mats and lowered beds, do little to prevent falls and can instead contribute to falls by startling residents, creating an uneven floor surface and instilling complacency in staff."  

According to the article there are those who are still using alarms and it will take some time for the change to be more widespread. As one expert noted in the article, using an alarm doesn't prevent a fall. "Going alarm-free isn't yet possible for every nursing home, but it's generally becoming a best practice as nursing facilities work to create the most home-like setting for people who live there, according to John Sauer, executive director of LeadingAge Wisconsin, a network of nonprofit long-term care organizations." As one expert noted in the article, using an alarm doesn't prevent a fall.

It seems that more personal care will be a great thing-but will the facilities have enough staff to help residents? We'll have to wait and see...

July 17, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Tuesday, July 5, 2016

Special and Supplemental Needs Trust To Be Highlighted At July 21-22 Elder Law Institute in Pennsylvania

In Pennsylvania each summer, one of the "must attend" events for elder law attorneys is the annual 2-day Elder Law Institute sponsored by the Pennsylvania Bar Institute.  This year the program, in its 19th year, will take place on July 21-22.  It's as much a brainstorming and strategic-thinking opportunity as it is a continuing legal education event.  Every year a guest speaker highlights a "hot topic," and this year that speaker is Howard Krooks, CELA, CAP from Boca Raton, Florida.  He will offer four sessions exploring Special Needs Trusts (SNTs), including an overview, drafting tips, funding rules and administration, including distributions and terminations.

Two of the most popular parts of the Institute occur at the beginning and the end, with Elder Law gurus Mariel Hazen and Rob Clofine kicking it off with their "Year in Review," covering the latest in cases, rule changes and pending developments on both a federal and state level.  The solid informational bookend that closes the Institute is a candid Q & A session with officials from the Department of Human Services on how they look at legal issues affected by state Medicaid rules -- and this year that session is aptly titled "Dancing with the DHS Stars." 

I admit I have missed this program -- but only twice -- and last year I felt the absence keenly, as I never quite felt "caught up" on the latest issues.   So I'll be there, taking notes and even hosting a couple of sessions myself, one on the latest trends in senior housing including CCRCs, and a fun one with Dennis Pappas (and star "actor" Stan Vasiliadis) on ethics questions.

Here is a link to pricing and registration information.  Just two weeks away!

 

July 5, 2016 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)

Thursday, June 30, 2016

Saving Medicare $ by Raising Eligibility Age?

Traditional Medicare Versus Private Insurance: How Spending, Volume, And Price Change At Age Sixty-Five , an article published in Health Affairs, discusses one topic that we hear periodically-that is, raising the age of Medicare eligibility from 65 to 67. The abstract explains:

To slow the growth of Medicare spending, some policy makers have advocated raising the Medicare eligibility age from the current sixty-five years to sixty-seven years. For the majority of affected adults, this would delay entry into Medicare and increase the time they are covered by private insurance. Despite its policy importance, little is known about how such a change would affect national health care spending, which is the sum of health care spending for all consumers and payers—including governments. We examined how spending differed between Medicare and private insurance using longitudinal data on imaging and procedures for a national cohort of individuals who switched from private insurance to Medicare at age sixty-five. Using a regression discontinuity design, we found that spending fell by $38.56 per beneficiary per quarter—or 32.4 percent—upon entry into Medicare at age sixty-five. In contrast, we found no changes in the volume of services at age sixty-five. For the previously insured, entry into Medicare led to a large drop in spending driven by lower provider prices, which may reflect Medicare’s purchasing power as a large insurer. These findings imply that increasing the Medicare eligibility age may raise national health care spending by replacing Medicare coverage with private insurance, which pays higher provider prices than Medicare does.

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June 30, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Wednesday, June 29, 2016

More on Observation Status

Last week Kaiser Health News (KHN) ran an update about Medicare's Observation Status, reminding readers that the requirements of the NOTICE Act go into effect on August 6, 2016.  Medicare Releases Draft Proposal For Patient Observation Notice explains that CMS has asked for comments on the draft notice it created for hospitals to use to explain observation status to patients. One expert quoted in the KHN article "said the notice is written for a 12th-grade reading level, even though most consumer materials aim for no more than an eighth-grade level. It 'assumes some health insurance knowledge that we are fairly certain most people don’t have.'" Others interviewed for the article expressed concerns about the draft of the notice and whether it goes far enough.  A sample of the draft notice can be viewed in the article. The comment period closed on June 17, 2016 and the article notes that the final CMS notice isn't expected until shortly before the law becomes effective.

June 29, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (1)

Monday, June 27, 2016

Retirement Advisors and the Fiduciary Standard

Do retirement advisors have to comply with the fiduciary standard when giving clients advice? If you said yes, you'd be right in line with what most folks think. After all, isn't your financial advisory giving you advice about your retirement investments? The New York Times article, Isn’t Honesty the Best Policy? explores this issue.

"The Department of Labor has been working since 2010 to hold everyone who provides financial retirement advice to this standard. After multiple public comment periods and significant consultation with industry leaders, consumer advocates and other experts, the department published a final rule that went into effect this week but provides the industry with a realistic transition period."  But not all are on board with using the fiduciary standard for financial advisors. So there was lobbying and action in Congress. "Their lobbying worked. Republican majorities in the House and Senate pushed through a bill to block the Department of Labor’s rule. On Wednesday, President Obama rightly vetoed it."

But that isn't the end of it. "[T]he Chamber of Commerce and other industry groups are trying a different route. Using similar arguments they made when lobbying Congress, they filed a last-ditch lawsuit in United States District Court for the Northern District of Texas ... to prevent the rule from being enforced." The lawsuit claims that it creates an "unwarranted burden[]" but the author of the article responds to that point: "I almost can’t believe this even needs to be said, but it’s not unwarranted to burden retirement advisers with a requirement that they act in their clients’ best interest."

According to the article, the opposition of the regulations may be speaking from both sides of their mouths, because "[w]hile financial executives complained to the Department of Labor that the rule was “immensely burdensome” and “very difficult” to comply with, they were telling investors on Wall Street that they “don’t see it as a significant hurdle” and that efficiently complying with the rule could provide a competitive edge in the market."

"If the fiduciary standard is good enough for medical care, legal advice and accounting, it is good enough for financial retirement advice. We don’t accept less anywhere else in commerce. Why should we accept it from those we trust to protect our retirement savings?"

Ask your advisor about the advisor's compliance with the fiduciary standard. It's important.

June 27, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Retirement | Permalink | Comments (0)