Friday, August 28, 2015

Medicaid Eligibility: Ohio Supreme Court Addresses Effect of Post-Admission, Pre-Eligibility Transfer of Home

One year and six days after hearing oral argument in Estate of Atkinson v. Ohio Department of Job & Family Services, a divided Ohio Supreme Court ruled in favor of the State in a Medicaid eligibility case involving transfer of the community home.  The majority, in a 4-3 vote, ruled that "federal and state Medicaid law do not permit unlimited transfers of assets from an institutional spouse to a community spouse after the CSRA (Community Spouse Resource Allowance) has been set." However, the court also remanded the case to the lower court for recalculation of the penalty period under narrow, specific provisions of state and federal law.

Attorneys representing families in "Medicaid planning" scenarios will be disappointed in the ruling, because it rejected "exempt asset" and "timing" arguments that would have permitted some greater sheltering of assets after the ill spouse's admission to the nursing home. 

At the same time, the complex reasoning and specific facts (involving transfer of the family home out of the married couple's "revocable trust" to the community spouse), will likely create additional business for elder law specialists, especially as the majority distinguished the 2013 federal appellate court ruling in Hughes v. McCarthy, that permitted use of spousal transfers using "annuities."   

The dissent was strongly worded:

It is clear that the law treats the marital home very carefully to prevent spousal impoverishment at the end of life. And that is the public policy we should be embracing. Based on the plain language of the federal statutes and the Ohio Administrative Code, as well as the holding of the United States Court of Appeals for the Sixth Circuit in Hughes v. McCarthy, 734 F.3d 473, I would hold that the transfer of the home between spouses prior to Medicaid eligibility being established is not an improper transfer and is not subject to the CSRA cap.

To view the oral argument of the case before the Ohio Supreme Court, see here. 

August 28, 2015 in Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Wednesday, August 26, 2015

Medicare Learning Network Call on Dementia Care

The Centers for Medicare & Medicaid Services (CMS) provides the Medicare Learning Network (MLN). MLN provides, among other things, articles, trainings, and national provider calls. The next national provider call is scheduled for September 3, 2015 at 1:30 p.m. edt on the National Partnership to Improve Dementia Care and QAPI. Here is the description of this call

During this MLN Connects® National Provider Call, two nursing homes share how they successfully implemented person-centered care approaches and overcame the barriers of cost and staff. Additionally, CMS subject matter experts update you on the progress of the National Partnership and Quality Assurance and Performance Improvement (QAPI). A question and answer session follows the presentations.

The National Partnership to Improve Dementia Care in Nursing Homes and QAPI are partnering on MLN Connects Calls to broaden discussions related to quality of life, quality of care, and safety issues. The National Partnership was developed to improve dementia care in nursing homes through the use of individualized, comprehensive care approaches to reduce the use of unnecessary antipsychotic medications. QAPI standards expand the level and scope of quality activities to ensure that facilities continuously identify and correct quality deficiencies and sustain performance improvement.

Should you register for this program?  The intended audience is "[c]onsumer and advocacy groups, nursing home providers, surveyor community, prescribers, professional associations, and other interested stakeholders." So, if you fall into one of those groups, the answer is yes, you should register. Registration information is available here.

More information about the National Partnership to Improve Dementia Care in Nursing Homes is available here.

August 26, 2015 in Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Programs/CLEs, Webinars | Permalink | Comments (0)

Tuesday, August 25, 2015

Subtle Messages in Webinar on "Managing" the Aging Academic Workforce?

An interesting approach to the topic of aging faculties in higher education recently came across my virtual desk in the form of an advertisement for an upcoming webinar (with an interesting price tag to match).  The title of the program is "Managing and Supporting an Aging Workforce," offered by Academic Impressions (a company I'm not familiar with) on November 15, 2015 from 1 to 2:30 p.m. EST. 

The brochure advises "Given the nature of this topic, this online training is appropriate for human resources professionals, department chairs, deans, and senior administrators who deal with faculty and personnel issues."

Here's the description, which strikes me as charting a careful approach to helping (encouraging?) older faculty members make the decision to retire, without running afoul of age discrimination laws.

Experienced academic and administrative employees are the pillars for many institutions in higher education. However, with many faculty and staff members working well into their 60’s and 70’s, administrators face the challenge of supporting an aging workforce while having the appropriate policies and procedures in place.

Learn how to better balance the interests of your employees with the needs of your institution. This webcast will cover:

  • Laws governing discrimination and how to remain in compliance
  • Appropriate steps for dealing with diminishing capabilities
  • Performance reviews, policies, and procedures

August 25, 2015 in Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Retirement, State Statutes/Regulations, Webinars | Permalink | Comments (0)

Thursday, August 20, 2015

Reading the "Alphabet Soup of Medicare & Medicaid Contractors"

Attorneys Don Romano and Jennifer Colagiovanni have a useful article in the August issue of The Health Lawyer, published by the ABA.  In The Alphabet Soup of Medicare and Medicaid Contractors, the authors spell out the many players involved in claims processing, payment and oversight for federal/state health care payments:

Healthcare providers, suppliers, and their staff, as well as attorneys representing healthcare entities are faced regularly with a barrage of private contractors tasked with a variety of responsibilities for administering the Medicare program, including claims processing, reimbursement, enrollment and auditing activities.  Given the number of different contractors (and different acronyms, for that matter), it can be difficult to identify the role of the particular contractor one is dealing with, the focus of goal of the program the contractor is involved in , and the responsibilities it is tasked with managing, as well as the statutory and regulatory scope of its authority.  This article seeks to identify the various Medicare and Medicaid contractors and outline their authority, focus and responsibilities.

If you ever had any question about why Medicare and Medicaid are expensive programs, this article suggests that payment for services is not the "only" significant cost factor. 

August 20, 2015 in Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Sunday, August 16, 2015

2015 National Aging & Law Conference

The National Aging & Law Conference is scheduled for October 29-30, 2015 at the Hilton Arlington, Arlington, VA. A number of ABA commissions and divisions are sponsors of this conference including the Commission on Legal Problems of the Elderly, the Coordinating Committee on Veterans Benefits & Services, the Senior Lawyers Division and the Real Property, Trust & Estate Law Section.  The website describes the conference

The 2015 National Aging and Law Conference (NALC) will bring together substantive law, policy, and legal service development and delivery practitioners from across the country.  The program will include sessions on Medicare, Medicaid, guardianship, elder abuse, legal ethics, legal service program development and delivery, consumer law, income security, and other issues.

The 2015 National Aging and Law Conference marks the second year that this conference has been hosted by the American Bar Association. This year’s agenda will include 24 workshops and 4 plenary sessions on key topics in health care, income security, elder abuse, alternatives to guardianship, consumer law, and  legal service development and delivery.  The focus of the agenda is on issues impacting law to moderate income Americans age 60 and over and the front line advocates that serve them. 

The agenda is available here. To register, click here.  Early bird registration ends August 28, 2015.

               

August 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Programs/CLEs, Social Security, Veterans | Permalink | Comments (0)

Monday, August 10, 2015

FAQ on Service Animals Under the ADA

The Department of Justice, Civil Rights Division, Disability Law Section has released an FAQ on service animals and the ADA. The 37 FAQ, Frequently Asked Questions about Service Animals and the ADA runs the gamut from definitions to general rules, to breeds of dogs, to exclusions, to certifications and registrations, and more.  DOJ offers this introduction to the FAQ: 

The Department of Justice continues to receive many questions about how the Americans with Disabilities Act (ADA) applies to service animals. The ADA requires State and local government agencies, businesses, and non-profit organizations (covered entities) that provide goods or services to the public to make "reasonable modifications" in their policies, practices, or procedures when necessary to accommodate people with disabilities. The service animal rules fall under this general principle. Accordingly, entities that have a "no pets" policy generally must modify the policy to allow service animals into their facilities. This publication provides guidance on the ADA’s service animal provisions and should be read in conjunction with the publication ADA Revised Requirements: Service Animals

(auth. note, ADA Revised Requirements: Service Animals found at http://www.ada.gov/service_animals_2010.htm). To learn more about the ADA, visit ADA.gov.

August 10, 2015 in Discrimination, Federal Statutes/Regulations | Permalink | Comments (0)

Will "Single Seniors" Change the Face of Long-Term Living and Supports?

The Public Policy Institute (PPI) of California recently profiled demographic changes likely to affect that state in coming decades, including the impact of a projected increase, to 20%, of the proportion of the population aged 65+.  One especially interesting component is the impact of seniors who are likely to be "single," especially those without the assistance of  children, spouses, or other close family members, a trend that seems likely to be true nationwide. From PPI's report (minus charts and footnotes):

Family structures in this age group will also change considerably—in particular, marital status will look quite different among seniors in 2030 than it does today.... The fastest projected rates of growth are among the divorced/separated and never married groups. Between 2012 and 2030, the number of married people over age 65 will increase by 75 percent—but the number who are divorced or separated will increase by 115 percent, and the number who are never married will increase by 210 percent....

 

Another significant change will be in the number of seniors who have children. Those who have never been married are much less likely to have children than those who have been married at some point. As a result, seniors in the future will be more likely to be childless than those today.... In 2012, just 12 percent of 75-year-old women had no children. We project that by 2030, nearly 20 percent will be childless. Since we know that adult children often provide care for their senior parents, these projections suggest that alternative non-family sources of care will become more common in the future.

Thus, just as we're making noise about supporting seniors' preference to "age at home," we may be over-assuming that family members will be available to provide key care without direct cost to the states.  Hmmm.  That's problematic, right?

More from the California PPI report, including some conclusions: 

California's senior population will grow rapidly over the next two decades, increasing by an estimated 87 percent, or four million people.  This population will be more diverse and less likely to be married or have children than senior are today.  The policy implications of an aging population are wide-ranging.  We estimate that about one million seniors will have some difficulties with self-care, and that more than 100,000 will require nursing home care. To ensure nursing home populations do not increase beyond this number, the state will need to pursue policies that provide resources to allow more people to age in their own homes....

 

The [California In-Home Service & Supports] IHSS program provides resources for seniors to hire workers, including family members, to provide support with personal care, household work, and errands. One benefit of hiring family members is that they may provide more culturally competent care. Medi-Cal is already the primary payer for nursing home residents, and the state could potentially save money by providing more home- and community-based services that support people as they age, helping to keep them out of institutions. Finally, the projected growth in nursing home residents and in seniors with self-care limitations will require a larger health care workforce. California’s community college system will be a critical resource in training qualified workers focused on the senior population.

The San Diego Union-Tribune follows up on this theme in California Will Have More Seniors Living Alone, by Joshua Stewart.

August 10, 2015 in Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Retirement, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Thursday, August 6, 2015

Medicare 5 Star Rating System Now Available For Home Health Agencies

In July, CMS announced the release of its 5 Star Rating System for Home Health Agencies (HHA). According to an article in the Kaiser Health News (KHN),

[t]he ratings are based on agencies’ assessments of their own patients, which the agencies report to the government, as well as Medicare billing records. The data is adjusted to take into account how frail the patients are and other potential influences. Medicare intends to use the same or similar data sources when it eventually begins to pay bonuses and penalties to agencies based on performance, as it does for hospitals.

According to Medicare's blog, HHAs are rated in 9 categories, including wound care and prevention of bed sores, handling daily activities, controlling pain, and protecting the patient from harm. To learn more, click here to visit the HHA Compare website.

August 6, 2015 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Friday, July 31, 2015

Update on Family Caregivers

AARP''s Public Policy Institute has released a new report that provides an update on the topic of family caregivers. Valuing the Invaluable 2015 Update: Undeniable Progress, but Big Gaps Remain is 25 pages long and available as a pdf. As the introduction notes:

In 2013, about 40 million family caregivers in the United States provided an estimated 37 billion hours of care to an adult with limitations in daily activities. The estimated economic value of their unpaid contributions  was approximately$470 billion in 2013, up from an estimated $450 billion in 2009.

This report also explains the key challenges facing family caregivers…The report highlights the growing importance of family caregiving on the public policy agenda. It lists key policy developments for family caregivers since the last Valuing the Invaluable report was released in 2011. Finally, the report recommends ways to better recognize and explicitly support caregiving families through public policies, private sector initiatives, and research.

The report reviews progress in policies, programs and services at the federal and state levels since the previous report and makes over 20 policy recommendations in a number of categories.

To both address the growing care gap as the population ages and lessen the strain in the daily lives of caregiving families, more meaningful public policies and private sector initiatives are needed now. Better strategies will assist those who need care and their families struggling to find and afford the supportive services to live in their homes and communities—where they want to stay. It is essential to the well-being of our health care and LTSS systems, our economy, our workplaces, our families, and ourselves.

July 31, 2015 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0)

Thursday, July 30, 2015

Hospital "Observation Status" Medicare Bill Goes to President Obama for Signature

The legislation carrying the name Notice of Observation Treatment and Implication for Care Eligibility (NOTICE) Act, that has now passed both the House and Senate, goes to President Obama for signature. If signed by the president, it will still be another year before its official effective date.

Sadly, it doesn't actually fix the problem for the patients with the fact that hospitals frequently attempt to hold patients on a fictional "observation only" status.  Money is  still the issue. Hospitals want to avoid harsh potential Medicare penalties associated with readmissions of "admitted" patients.  At the same time, the lack of "admitted status" reduces the ability of patients to seek Medicare coverage for rehabilitation care post-hospitalization.  But now the patients get better "notice" of their status -- and the potential for it to affect Medicare coverage and therefor out-of-pocket expense for the patients.

ElderLawGuy Jeff Marshall has posted a good blog review of the new law, supplementing his earlier coverage of the problems.  See his Observation Status Bill Heads to President's Desk

July 30, 2015 in Consumer Information, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Tuesday, July 28, 2015

ADA Turns 25

The Americans with Disabilities Act (ADA) was signed into law 25 years ago, on July 26, 1990, by President George H.W. Bush. According to the information on the ADA website

Twenty-five years ago, through the Americans with Disabilities Act (ADA), our nation committed itself to eliminating discrimination against people with disabilities. The U.S. Department of Justice’s Civil Rights Division  is proud to play a critical role in enforcing the ADA, working towards a future  in which all the doors are open to equality of opportunity, full participation,  independent living, integration and economic self-sufficiency for persons with  disabilities. In honor of the 25th anniversary of the ADA, each month the  Department of Justice will spotlight efforts that are opening gateways to full  participation and opportunity for people with disabilities.

The efforts that are spotlighted can be accessed here.  Concomitant with the anniversary, the Social Security Administration's July 27, 2015 blog, Supporting the Americans with Disabilities Act, focused on the ADA's anniversary. 

There were a number of articles highlighting the ADA's anniversary.  For example, the New York Times  ran a Room for Debate on the ADA, The Americans With Disabilities Act, 25 Years LaterNPR did a story on the ADA's influence on other countries, How A Law To Protect Disabled Americans Became Imitated Around The World and the Washington Post ran an article by Professor Robert L. Burgdorf Jr., Why I Wrote the Americans with Disabilities ActPresident Obama spoke about the anniversary of the ADA and the White House website has a page devoted to issues facing Americans with disabilities. 

If you cover the ADA in your classes, there are many more useful articles and stories released as a result of the  ADA's 25th anniversary. 

July 28, 2015 in Current Affairs, Discrimination, Federal Statutes/Regulations, International, Social Security | Permalink | Comments (0)

Monday, July 27, 2015

Law Reform: A Proposed Remedy for "Deeply Toxic" Damage to Higher Ed Caused by Abolition of Mandatory Retirement

Bentley University Professors  Beverley Earle and Marianne Delbo Kulow have a nicely provocative article in the Spring 2015 issue of the Southern California Interdisciplinary Law Journal, titled The "Deeply Toxic" Damage Caused by the Abolition of Mandatory Retirement and its Collision with Tenure in Higher Education: A Proposal for Statutory Repair.  From the introduction:

There are very few positions that offer the level of protection that tenure does. One such position is a federal judgeship, which is distinguishable because of the very public nature of the work. If a judge performs inadequately, community backlash may quickly develop that could usher in a publicly coerced retirement. For example, a state judge, who recently gave a lenient sentence to a convicted rapist of a minor who committed suicide, has announced his retirement following pubic outrage.Tenured faculty members, unlike judges, labor in the relative isolation of the classroom, where feedback comes at the end of the semester and then only via student evaluations. This creates the first of two problems for higher education in the United States stemming from the abolition of mandatory retirement: the difficulty of removing a tenured professor for poor performance.

 

In most universities, only egregiously poor performance by a tenured professor is flagged for termination; outdated, boring, or barely adequate, teaching may not sufficiently stand out to warrant a more intense review.  There is also a slow feedback loopdue to minimal, if any, post-tenure peer classroom evaluations and skepticism about student evaluations of teaching. Therefore, often many semesters pass before there is sufficient evidence to persuade a professor or her superiors that the tenured professor's employment status should be reevaluated. Inadequacies in scholarship can be even more difficult to discern, given the common time lag between research and publication, as well as the variations between disciplines in frequency, length, and format of publications.

 

The second distinct challenge faced by higher education caused by the coupling of the abolition of mandatory retirement with the institution of tenure is the prospect of stagnant departments: no new faculty may be hired because there are no vacancies....

The authors' proposed reforms include "expiration" of tenure for professors reaching age 70, while permitting continued employment opportunities on the same evaluative standards as non-tenured faculty. 

July 27, 2015 in Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Retirement, Statistics | Permalink | Comments (0)

Sunday, July 26, 2015

Register Now: Webinar on How to Resolve Common Nursing Home Problems

Justice in Aging has announced an upcoming free webinar on How to Resolve Common Nursing Home Problems. Here is a description of the webinar from the Justice in Aging website:

Many common nursing home practices are, in fact, illegal.  In order to receive the best possible quality of care, a resident or resident’s family member should be familiar with the protections of the federal Nursing Home Reform Law, and understand how to use the law effectively.

This free webinar, with Directing Attorney Eric Carlson, will detail the most common problems that crop up—from evictions to excessive medication—and provide practical, clear tips to help family members and advocates navigate solutions.

This webinar complements the re-release of an updated version of our popular guide, 20 Common Nursing Home Problems and How to Resolve Them. Look for it on our website starting on Thursday, July 23, 2015.

The webinar is set for August 4, 2015 at 2 p.m. EDT.  To register, click here.

July 26, 2015 in Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Programs/CLEs, Webinars | Permalink | Comments (0)

Friday, July 24, 2015

Social Security & Medicare Trustees Annual Reports

On July 22, 2015 the Social Security Trustees issued its annual report about the Social Security Trust funds. According to the press release, the good news overall is SSA gained a year in solvency. The bad news, the disability insurance trust fund reserve runs out of money next year.

The combined asset reserves of the Old-Age  and Survivors Insurance, and Disability Insurance (OASDI) Trust Funds are  projected to become depleted in 2034, one year later than projected last year,  with 79 percent of benefits payable at that time.  The DI Trust Fund reserve will become depleted in  2016, unchanged from last year’s estimate, with 81 percent of benefits still  payable.

In the press release, Acting Commissioner Carolyn W. Colvin addressed the DI Trust Fund issue:

While the projected depletion date of the combined OASDI trust funds gained a year, the Disability Insurance Trust Fund's projected depletion year remains 2016. I agree with President Obama, we have to keep Social Security strong, protecting its future solvency. President Obama's FY 2016 budget proposes to address this near-term Disability Insurance Trust Fund's reserve depletion. By reallocating a portion of payroll taxes from Old Age Survivors to the Disability Trust Fund - as has been done many times in the past - would have no adverse effect on the solvency of the overall Social Security program....

The full report The 2015 Annual Report of the Board of Trustees of the Federal      Old-Age and Survivors Insurance and Federal Disability Insurance Trust Funds is available as a pdf here.

The Medicare Trustees report was also released on July 22, 2015. The news from Medicare was slightly better, with the trust fund solvency still in place through 2030.

[T]he Medicare Trustees projected that the trust fund that finances Medicare’s hospital insurance coverage will remain solvent until 2030, unchanged from last year, but with an improved long-term outlook from last year's report. Under this year’s projection, the trust fund will remain solvent 13 years longer than the Trustees projected in 2009, before the passage of the Affordable Care Act.

However, the press release notes an anticipated increase in Medicare Part B premiums for next year:

[A]pproximately 70 percent of beneficiaries are expected not to see a premium increase in 2016 because it is projected that there will be no cost-of-living increases in Social Security benefits. The remaining 30 percent of beneficiaries would pay a higher premium based on this projection. These include only individuals who enroll in Part B for the first time in 2016; enrollees who do not receive a Social Security benefit; beneficiaries that are directly billed for their Part B premium; and current enrollees who pay an income related higher premium. Decisions about premium changes will be made in October and depend on a variety of factors.

The full report is available as a PDF here.

July 24, 2015 in Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Social Security | Permalink | Comments (0)

Monday, July 20, 2015

When HIPAA "Security" Law is Misinterpreted...

A good piece from the New York Times' Paula Span (and her always relevant New Old Age Blog), HIPAA's Use as Code of Silence Often Misinterprets the Law:

How do people use, misuse or abuse Hipaa, the federal regulations protecting patients’ confidential health information? Let us count the ways:

 

■ Last month, in a continuing care retirement community in Ithaca, N.Y., Helen Wyvill, 72, noticed that a friend hadn’t shown up for their regular swim. She wasn’t in her apartment, either.

 

Had she gone to a hospital? Could friends visit or call? Was anyone taking care of the dog? Questions to the staff brought a familiar nonresponse: Nobody could provide any information because of Hipaa.

 

“The administration says they have to abide by the law, blah, blah,” Ms. Wyvill said. “They won’t even tell you if somebody has died.”

Ms. Span has reported on HIPAA problems before in her column and she tracks attempts to find solutions that balance the needs for privacy with communication that would be helpful.

Another common complaint about Hipaa enforcement, by the way, is the lack of access to patients’ own health records, which they have a right to see or copy, though providers can charge copying fees.

 

Within families, decisions about how much health information to share, and with whom, often become complicated, as a recent study in JAMA Internal Medicine found. When researchers working to design online patient portals convened two sets of focus groups — one for people over age 75, another for family caregivers — they heard the usual tension between older adults’ need for assistance and their desire for autonomy.

 

“Seniors say, ‘I don’t want to burden my kids with my medical issues,’ ” said Bradley Crotty, the director of patient portals at Beth Israel Deaconess Medical Center in Boston and the study’s lead author. “And the family is saying, ‘I’m already worried. Not knowing is the burden.’ ”

My thanks to my colleague Professor Laurel Terry for sharing this piece. 

 

July 20, 2015 in Consumer Information, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (1)

A "Behavioral Economic Case for Paternalistic" Retirement Laws: Paul Secunda

Marquette Law Professor Paul Secunda always has interesting perspectives, and that is again true with his recent article, The Behavioral Economic Case for Paternalistic Workplace Retirement Plans, to be published in an upcoming issue of the Indiana Law Journal.  From his SSRN abstract:

Dependence on 401(k) retirement accounts continues to cause a massive retirement crisis in the United States by leaving most workers unprepared for retirement. The voluntary, inaccessible, employer-centered, expensive, and consumer-driven nature of these plans has combined to make retirement a type of corporate-inspired elder abuse in America.



Behavioral economics considers the utility of permitting individual choice in decision-making settings. Many, however, have been misled to believe that more choice is always better.  Yet, according to one prominent commentator, this consumer-driven paradigm will lead to forty-eight percent of current workers between the ages of fifty and sixty-four being poor when they reach retirement.  Behavioral economic workplace research instead strongly suggests that a better approach would be to use “choice architecture” to nudge workers into well-diversified, low-fee default retirement accounts set up by government-regulated private retirement funds. 



Such a successful paternalistic workplace retirement model already exists. The Australian Superannuation Guarantee is a mandatory, universal, private, and comparatively inexpensive workplace retirement scheme.  It also aligns the interests of retirement fund managers with fund participants.  Most Australian employees do not exercise choice with regard to how their retirement contributions are invested.  Employer contributions default into an individual’s MySuper retirement account operated by the country’s best money managers, who invest worker funds in a diversified manner, while charging very low investment fees. 



As part of my Stewart Lecture remarks, I outline here a vision for the transformation of the American 401(k) retirement system into an efficient and sustainable superannuation model based on behavioral economic insights from the Australian workplace retirement system.

July 20, 2015 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, International, Retirement | Permalink | Comments (0)

Friday, July 17, 2015

9th Circuit Sets Aside Case Precedent on Whistleblowers Under False Claims Act

On July 7, 2015, in U.S. ex rel Hartpence v. Kinetic Concepts, Inc., the Ninth Circuit, sitting en banc, created an easier path for whistleblowers to recovery under the False Claims Act for disclosure of fraudulent claims for Medicare reimbursement.  From its introduction to the ruling in consolidated civil qui tam suits:

If a whistleblower informs the government that it has been bilked by a provider of goods and services, and that scheme is unmasked to the public, under what conditions can that same whistleblower recover part of what the guilty provider is forced to reimburse the government? We hold today that there are two, and only two, requirements in order for a whistleblower to be an “original source” who may recover under the False Claims Act: (1) Before filing his action, the whistleblower must voluntarily inform the government of the facts which underlie the allegations of his complaint; and (2) he must have direct and independent knowledge of the allegations underlying his complaint. Abrogating our earlier precedent, we conclude that it does not matter whether he also played a role in the public disclosure of the allegations that are part of his suit. We also hold that the district court erred in its application of the rule that a whistleblower must be the first to file an action seeking reimbursement on behalf of the government based on the fraudulent scheme.

According to one lawyer interviewed here, the impact of the decision to reverse 25-year old case precedent, though important, may be limited to older cases, "since 2010 amendments to the False Claims Act have further clarified the 'original source' requirements. 

Additional history -- and predicting clarifications --  about the public disclosure provisions of the False Claims Act comes from Albany Law Emeritus Professor Beverly Cohen, in an article from Mercer Law Review, titled "Trouble at the Source: The Debates Over the Public Disclosure Provisions of the False Claims Act's Original Source Rule."   For more, see Professor Cohen's interesting article (in my own law school's law review, I was happy to discover!), "Kaboom! The Explosion of Qui Tam False Claims Under the Health Reform Law."

July 17, 2015 in Crimes, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Medicare | Permalink | Comments (0)

Tuesday, July 14, 2015

Proposed Significant Changes to Nursing Home Regs!

In conjunction with the 2015 White House Conference on Aging, on July 13, 2015 CMS announced proposed changes to nursing home regulations. The proposed changes will be published in the Federal Register on July 16, 2015, but an advance look at the proposal is available here.

July 14, 2015 in Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0)

Friday, July 10, 2015

Medicare to Cover Advance Care Planning?

On July 8, 2015, the Centers for Medicare and Medicaid Services (CMS) announced the proposed 2016 Physician Fee Schedule that includes a provision for paying doctors to talk to patients about end of life care.  Referenced in the proposed rule as advance care planning, comments are due by 5 p.m. on September 8, 2015.  The proposed rule will appear in the Federal Register on July 15, 2015. For more information see Kaiser Health News (KHN) Medicare Proposes Paying Doctors For End-Of-Life Discussions.

July 10, 2015 in Advance Directives/End-of-Life, Federal Statutes/Regulations, Medicare | Permalink | Comments (0)

Wednesday, July 8, 2015

July 15: ABA Hosts Webinar on What Every Attorney Needs to Know about SSI

Two of my favorite bright lawyers (with great hearts, too) are Kate Lang from Justice in Aging in Washington D.C. and John Whitelaw from Community Legal Services of Philadelphia.  Kate and John are the speakers at an upcoming ABA hosted webinar on Supplemental Security Income (SSI): What Every Attorney Needs to Know.

Time:  1 to 2:30 p.m. (Eastern Time)

Date: Wednesday, July 15, 2015

Here are other details about registration and cost. 

July 8, 2015 in Federal Cases, Federal Statutes/Regulations, Programs/CLEs, Social Security, Webinars | Permalink | Comments (0)