Friday, July 31, 2015
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.
Thursday, July 30, 2015
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.
Tuesday, July 28, 2015
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 Later. NPR 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 Act. President 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.
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.
Sunday, July 26, 2015
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.
Friday, July 24, 2015
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.
Monday, July 20, 2015
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.
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.
Friday, July 17, 2015
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."
Tuesday, July 14, 2015
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.
Friday, July 10, 2015
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.
Wednesday, July 8, 2015
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.
Friday, June 26, 2015
Relying on the 14th Amendment, in a 5-4 ruling, the U.S. Supreme Court ruled that states must license marriages -- and recognize them as valid marriages -- for same sex couples. Justice Kennedy wrote the opinion for the majority; Chief Justice Roberts authored a dissent.
UPDATE: in watching the evening news tonight, I was struck by the numbers of couples with grey hair celebrating the Supreme Court's decision. For the moving story of Jim Obergefell, the lead plaintiff, see this People profile. For commentary on how the most recent Supreme Court ruling, on top of the Windsor case, affects "older" same sex couples, see this blog entry from Justice in Aging.
Tuesday, June 23, 2015
There are four overarching themes for topics deemed critical to elders' well-being to be discussed at the White House Conference on Aging in July 2015. The planned themes are: healthy aging, retirement security, long-term supports and services, and elder justice. Here is an overview, pointing to articles used to create an agenda, from Robert Hudson, Editor-in-Chief of the Public Policy & Aging Report for 2015.
June 23, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Programs/CLEs | Permalink | Comments (0)
Thursday, June 18, 2015
Earlier this week I recommended Atul Gawande's book, Being Mortal: Medicine and What Matters in the End, and I offered an excerpt from his discussion of how doctors are impacted by practical limits on their goals as solvers of problems. But the book is about more than just medicine. Another compelling chapter traces attempts to avoid "nursing homes" and the once cutting edge trend of "assisted living" as an alternative:
The idea spread astoundingly quickly. Around 1990, based on [Keren Brown] Wilson's successes, Oregon launched an initiative to encourage the building of more homes like hers. Wilson worked with her husband to replicate their model and to help others do the same. They found a ready market. People proved willing to pay considerable sums to avoid ending up in a nursing home, and several states agreed to cover the costs for poor elders.
Not long after that, Wilson went to Wall Street for capital, to build more places. Her company, Assisted Living Concepts, went public. Others sparing up with names like Sunrise, Atria, Sterling, and Karrington, and assisted living became the fastest growing form of senior housing in the country. By 2000, Wilson had expanded her company from fewer than a hundred employees to more than three thousand. It operated 184 residents in eighteen states. By 2010, the number of people in assisted living was approaching the number in nursing homes.
But a distressing thing happened along the way. The concept of assisted living became so popular that developers began slapping the name on just about anything. The idea mutated from a radical alternative to nursing homes into a menagerie of watered-down versions with fewer services. Wilson testified before Congress and spoke across the country about her increasing alarm at the way the ideas was evolving....
For more, see Chapter 4 of Being Mortal, titled "Assistance." The other intriguingly-named chapters are "The Independent Self," Things Fall Apart," "Dependence," "A Better Life," "A Better Life," "Letting Go," "Hard Conversations," and "Courage."
June 18, 2015 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Property Management, Retirement, State Statutes/Regulations | Permalink | Comments (0)
Monday, June 8, 2015
In Eades v. Kennedy PC Law Offices, decided June 4, 2015, the Second Circuit ruled that a federal court in New York has personal jurisdiction to address alleged unfair debt collection practices of a Pennsylvania law firm in seeking to collect unpaid nursing home fees totaling $8,000. The plaintiffs, New York residents -- the husband and adult daughter of a woman in a Pennsylvania nursing home -- challenged statements in correspondence and phone communications allegedly made by the Pennsylvania law firm. The claims against the daughter were based on Pennsylvania's filial support law.
As reported on this Blog in December 2013, the United States District Court for the Western District of New York dismissed the suit, finding no personal jurisdiction and further rejecting application of the federal Fair Debt Collection Practices Act (FDCPA). The Second Circuit's ruling concludes, however, that the law firm's "three purposeful contacts with New York," of mailing a debt collection notice to the New York family members, engaging in a debt collection phone call with the daughter, and mailing a summons and complaint to both the daughter and the nursing home resident's husband, are enough to establish personal jurisdiction under New York's long-arm statute. Further, the defendant law firm had not shown that exercise of such jurisdiction was unreasonable.
On the questions raised by the FDCPA claims, the Second Circuit rejected several key arguments by the plaintiffs, concluding that Pennsylvania's filial support law is not preempted by the Nursing Home Reform Act's prohibition on nursing homes requiring third party guarantees of payment:
June 8, 2015 in Consumer Information, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Sunday, May 31, 2015
The GAO has issued a new report on how Home & Community Based Services & Supports are delivered. Older Adults Federal Strategy Needed to Help Ensure Efficient and Effective Delivery of Home and Community-Based Services and Supports is a 60 page report that "addresses (1) federal programs that fund these services and supports for older adults, (2) how these services and supports are planned and delivered in selected localities, and (3) agencies’ efforts to promote a coordinated federal system of these services and supports." The GAO recommends in the report "that HHS facilitate development of a cross agency federal strategy to ensure efficient and effective use of federal resources for HCBS. HHS concurred and HUD, DOT, and USDA did not comment." A number of topics are covered, including transportation, aging in place, information and referral, housing, in-home services, and food assistance. The report discusses the importance of cross-agency collaboration. The GAO concludes that
As the older population continues to grow, communities will find it increasingly difficult to meet the demand for the HCBS and supports many older adults will need to age in their own homes and communities. Based on recent trends, federal funding at AoA, HUD, and DOT for HCBS and supports is not likely to keep pace with demand for these services and supports, making it important to ensure that the federal resources available for this purpose are used effectively and efficiently. Development of a cross-agency federal strategy could better position the federal agencies to assist area agencies on aging and community-based organizations with providing HCBS and supports in the most efficient and effective manner. Under the Older Americans Act, AoA is responsible for facilitating the provision of home and community-based services and supports for older adults in this country, in coordination with CMS and other federal agencies. As a result, AoA is well-positioned to lead collaboration among the five federal agencies covered in our review. However, because of increases in Medicaid spending and emphasis on the role of HCBS in supporting health care patients, CMS has become an even more important partner to AoA in meeting older adults’ expected demand for HCBS. Thus, it may be most appropriate for the HHS Secretary to take the initiative in developing such a cross-agency federal strategy.
Thursday, May 28, 2015
In the PBS documentary airing in May and June, Caring for Mom & Dad, the second half of the program focuses on policy initiatives to support services for older adults. One interesting highlight is Ohio's use of local property tax levies that directly supplement senior services. Begun in the early 1980s as a referendum initiative in just one county, similar programs have been adopted by voters in counties or municipalities in more than 70 of Ohio's 88 counties. That is an amazing history, especially given the usual hostilities about "new" taxes. Voters appear to recognize that the levies permit unique flexibility to design programs that meet the needs of their community's seniors, whether in rural or urban areas, such as transportation services or home care subsidies. The revenue now generated in Ohio, more than $125 million per year, exceeds federal grant funding under the Older Americans Act nationally.
Ohio's inspiring "Lady of the Levy," Lois Dale Brown, is mentioned in the PBS documentary, and she's profiled, along with additional details about the senior service levies, on the Ohio Department of Aging's website.
As a reminder, WPSU-TV is airing Caring for Mom & Dad at 8 p.m. this evening in Pennsylvania, followed by a one hour "Conversations Live" open to incoming calls, texts and emails. Details available here.
May 28, 2015 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Film, Health Care/Long Term Care, Housing, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 26, 2015
Here is an interesting item from a recent Senior Care Investor News, published by Irving Levin & Associates:
"The rise in acuity in post-acute care is certainly having its impact in the skilled nursing M&A market. Historically, the range in price per bed for skilled nursing facilities has been approximately $100,00 to $125,000 per bed, according to the 2015 Senior Care Acquisition Report. Every year, there are always sales between $10,000 and $20,000 per bed, with the occasional sale below $10,000 per bed. And there have always been sales above $100,000. But in 2014, while the low price was a typical $9,000 per bed, the high was an astounding $268,500 per bed, resulting in a spread of $259,500. There was also a record number of deals valued over $100,000 per bed, with 19 transactions, which just goes to show the rise in acuity is pushing up prices across the board."
What would be driving the market for "skilled" beds to a higher figure, especially given the continued dependence on Medicaid as the primary payer for skilled care, combined with the fact that Medicaid pays below (and arguably significantly below) actual costs of skilled care? This market data seems illogical to me, and I'm sure I'm missing something.
Monday, May 25, 2015
A new report from the AARP Public Policy Institute/Urban Institute highlights the positive impact of Medicaid expansion for the 50-64 age group. Monitoring the Impact of Health Reform on Americans Ages 50–64 notes that "[t]he Uninsured Rate for 50- to 64-Year-Olds Dropped 31 Percent since December 2013."
The abstract for the report offers that
New data from the December 2014 Health Reform Monitoring Survey show that the share of Americans ages 50 to 64 without health insurance fell by nearly a third, from 11.6 percent to 8.0 percent, between December 2013 and December 2014. States that chose to expand eligibility for their Medicaid programs saw a larger drop in uninsured rates among 50- to 64-year-olds than states that did not. Overall, the number of 50- to 64-year olds with health coverage increased by approximately 2.2 million between December 2013 and December 2014.
The report determines that "Medicaid expansion was a clear driver of the reduction of the uninsured rate among 50- to 64-year olds."
The full report is available here.