Tuesday, April 24, 2018

Medicare's Observation Status-Impacting the Pocket Book of Patients

We have had several blog posts about the issues with Medicare's Observation Status.  A recent story on NPR (thanks to our friend Professor Naomi Cahn for sending it to us) gives us a first-person account of the impact observation status has on a patient's checkbook. How Medicare's Conflicting Hospitalization Rules Cost Me Thousands Of Dollars tells the story of a daughter who had to pay $12k for a nursing home stay for her mother's care because her mother didn't have a qualifying three-day hospital stay even though her mother was in the hospital for 4 nights. Why wouldn't Medicare pay? Say it with me now-observation status.  As the daughter relates,  her "mother was caught in an administrative wonderland where she slept at a hospital for four nights, but the paperwork said she was an inpatient only one of those nights. Medicare's rules, dating back to the 1960s, require people to spend three nights in a hospital before the federal program will pay for inpatient rehabilitative care."  She notes her frustration with the explanations that focused on rules rather than her mother's medical care:

  • The doctor couldn't admit her as an inpatient because she didn't have a qualifying diagnosis.
  • Her status was changed from observation to inpatient on the third day because Medicare requires that.
  • They could not change her status to inpatient for the entire stay because they didn't want to be audited.
  • She couldn't go to acute rehabilitation, which Medicare pays for, because there was no evidence she had had a stroke or heart attack.

She describes the competing Medicare Rules that produce this dilemma, and hospitals' concerns about audits. She also describes software that hospitals use to decide whether to admit a patient or maintain the patient on observation status. To admit or not to admit, that is the question! (with apologies to William Shakespeare).  This long-standing problem rule is well-known, and Congressional bills to fix it haven't gotten traction, she writes.  Why not shelve the three-night requirement?  The article mentions money as a likely explanation, but it appears that it is not 100% certain that is the reason, as the author cites to two studies from the '70s.

Regardless, I do think we can agree that the requirement catches some folks off guard (despite the NOTICE Act) and costs many folks who need SNF care subsequently a lot of money.

For more on the issue of observation status, visit the Center for Medicare Advocacy.

April 24, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Tuesday, April 17, 2018

Access to Justice for Older Adults: Is the Glass Half Empty or Half Full?

Testimony before PA House Hearing on Access to Justice 4.11.18TThe Pennsylvania House Committee on Aging and Older Adult Services  invited representatives of legal aid organizations to speak on April 11, 2018.  As I listened to attorneys from SeniorLAW Center, Community Legal Services of Philadelphia, MidPenn Legal Services and the Deputy Chief Counsel and Legal Assistance Developer for Pennsylvania's Department of Aging, it occurred to me that many of the client histories, including my own school's clinic story, were about positive outcomes in representing individuals facing potentially tragic futures, including eviction from the only housing they know, rejection for Medical Assistance, or no option but to rely on the unkindness of strangers. 

We were speaking, understandably, about the good that trained lawyers and lawyers-in-training (students in law school clinical programs) can do.  For example, Pam Walz, director of the Aging and Disabilities Unit at Community Legal Services (CLS) in Philadelphia told the story of a recent client, "Mr. D," who at age 70 was living alone in a single room in a rooming house.  He was found unconscious, leading to hospitalization:

He had suffered a stroke and at the hospital he was also diagnosed with throat cancer.  A treatment plan was created, including radiation therapy, and he had to have a feeding tube placed.  The hospital discharged him to a nursing facility because they did not think he could care for himself alone in a rooming house. . . .

 

Mr. D received rehabilitation for about two weeks at the nursing facility but the facility failed to coordinate with his oncologist or to provide him with transportation for his first radiation treatment.  Worse yet, the nursing facility told Mr. D that they were discharging him because his Medicare coverage had ended, despite the fact that he continued to need nursing facility care and is eligible to have his continued stay paid by Medicaid [under federal and state law]. . . .  The nursing facility had also failed to provide a legally required written notice of discharge, explaining Mr. D's rights to appeal the discharge to the Department of Human Services. . . . [S]ending Mr. D back to his rooming house in his condition would not be a safe discharge.

CLS attorneys stepped in and filed the appropriate papers to get the discharge stopped until the legally mandated "safe" discharge plan could be determined.  They recognized that Mr. D was further in jeopardy because he needed assistance in Spanish, a requirement safeguarded by Title VI of the federal Civil Rights Act.  

CLS attorneys will continue to represent him.  The message in common for the speakers is about the better outcomes possible when trained experts step in.  On the one hand it is a success story and a success story heard across the nation at the hands of both legal aid attorneys and private attorneys who are skilled in the array of state and federal laws intended to protect older adults and provide greater dignity in circumstances of need, including ill health or extreme risk.  

I realized that with our testimony, including my testimony about students at Penn State's Dickinson Law's Community Law Center, who were able to prevent the wrongful eviction of an older man, we were painting a picture of a glass half full. But a half-full glass is also half-empty.  As I testified, the histories also made me a bit sad, because I know how many calls for help go unanswered, because there aren't enough free or low cost services for those in need. 

As one woman explained to me in seeking a lawyer, "I had a plan.  I planned to work until I was 70 and I made it.  I planned my savings to last until I was 80 and I made it.  Unfortunately, now I'm 85 and my savings weren't enough, Social Security isn't enough, and I don't know what to do. . . . I think I need help with my creditors, but I can't pay an attorney to help me."

I testified that law schools with clinical programs and legal aid organizations are willing to do more to represent the underrepresented, but to do so each such organization needs ines of funding dedicated to older adult legal services.  In more rural communities, the need may be especially serious.  It's not that the glass is half full or half empty, it's that the glass is probably just 20% full, as so many go without sound legal advice until desperation sets in, and even then only a small number get help in time. 

In the photo here, after testifying before the House committee, we're smiling because key members were listening and asking important questions. PA House of Representatives Hearing on Access to Justice for Older Adults 4.11.18
The tall man in the center, Chairman Tim Hennessey, has long served in a leadership role for senior services in Pennsylvania.  Around him, from left to right, me, Deborah Hargett-Robinson (Pa Department of Aging), Wendy Bookler (SeniorLAW Center), Karen Buck (Exec. Dir. SeniorLAW Center), Pam Walz (CLS) and Marisa Halm (Dickinson Law 1L student who will intern with SeniorLAW in summer 2018).

I'm often bouyed by the commitment of so many students to public interest law. Students who plan on private practice also, increasingly, recognize commitments to public service with their own pro-bono pledges.  Private attorneys who make a commitment of a percentage of their time to pro-bono services are part of the solution.

Justice Sonia Sotomayor, before she made it to the bench of the highest court in the U.S., reminded lawyers of our duty to "represent the underrepresented in our society" and to "ensure that justice exists for all, both legal and economic justice."  A reminder in these challenging times of our ability and obligation to do good.  

For more, here's a link to my written testimony.

My special thanks to Karen Buck for her leadership role on the future of legal services in Pennsylvania.  Here is the link to SeniorLAW Executive Director Buck's testimony;  Karen opened the hearing.

April 17, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (1)

Thursday, April 12, 2018

SSI 101

I know it's  near the end of the semester, so tuck this resource away for your classes for next fall. Justice in Aging has released Supplemental Security Income 101 : A Guide for Advocates. 

Here's the reason for this guide: "This Guide is designed to introduce advocates and individuals who provide assistance to older adults to the Supplemental Security Income (SSI) program. This Guide is focused on the basics of the SSI program for those who may qualify based on age (65 years or older): the benefits, key eligibility criteria, and the application and appeals processes. This Guide is intended to serve as a complement to other practice guides that focus on issues involving SSI disability determinations, eligibility, and benefits."

The guide is perfect for law students and others who need to gain familiarity with SSI, starting with an explanation of SSI and explaining the distinction between SSI and SSDI.

Great job Justice in Aging!

April 12, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Social Security | Permalink

Tuesday, April 10, 2018

Right to Try Bill Passes House on Second Try

According to the New York Times, late last month, the House of Representatives passed the right to try bill on their second attempt. House Passes Bill That Would Give Patients Access to Experimental Drugs explains that "[s]upporters said the bill would give dying patients a chance to obtain potentially helpful prescription drugs without waiting for the completion of clinical trials or going through a process established by the Food and Drug Administration to allow the use of “investigational drugs” outside clinical trials." There were supporters as well as opponents of the bill. 

The House and Senate bills would establish a new pathway providing access to unapproved medicines for certain patients who had exhausted other treatment options. To qualify under the House bill, a patient would have to have some kind of terminal illness: a condition that is likely to cause death “within a matter of months” or “irreversible morbidity that is likely to lead to severely premature death.”

Nothing in the bill would require pharmaceutical companies to provide experimental drugs to patients who requested them. Drug manufacturers sometimes turn down requests because they have only a limited supply or they are concerned about legal and medical risks.]

To address such concerns, the legislation would shield drugmakers, doctors and hospitals from some of the legal risks of providing unapproved drugs to patients. Doctors and hospitals would generally be protected unless they engaged in gross negligence or willful, reckless or criminal misconduct.

April 10, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Other, Science | Permalink | Comments (0)

Whither Goest Deregulation of Nursing Homes?

I've been struck by the contrast in two recent articles.  The always wise Toby Edelman, senior policy attorney at the Center for Medicare Advocacy,  was writing about Deregulating Nursing Homes.  He begins:

In lockstep with the nursing home industry, the Trump Administration is rapidly dismantling the regulations and guidance that have been developed over the past 30 years to implement and enforce the federal Nursing Home Reform Law. Until the Christmas Eve 2017 report in The New York Times, these devastating changes, often made without any public notice or comment, received no public attention.

Toby reminds us that a "regulatory system is intended to prevent avoidable bad outcomes in the first place."  But in his view, both the regulatory system and "the enforcement system .. . [are] under severe attack."

On the other hand, I just read an equally sincere essay authored by a long-term nursing home administer, entitled Why I Chose to Leave the Nursing Home Profession: A Fed-Up Executive's Story.  She writes about her frustrations in trying to do the right thing for residents:

Regulations that are so prescriptive that they dictate the exact steps required to comply with the regulation create nothing but an assembly line of care — which is exactly what we are supposed to be fighting against.

 

I find it baffling that regulations require a facility to operate a “home-like” environment, but then sends surveyors into a facility to pick apart attempts to individualize care. For example, many residents wish to have one side of their twin bed up against a wall to create an increased sense of safety, as well as assist with bed mobility. Upon notification of a surveyor that this was a form of restraint, we had to “undo” the beds that were set up this way to avoid a citation for restraints.

 

Then that started the tedious process to evaluate the resident, obtain consent, revise the care plan and ensure that documentation from the staff addressed the continued need of the resident.

 

The paternalistic approach of “we know what is best for you” will only serve to solidify the Institutional care model that seems to be the chosen and preferred method for our societal approach to caring for the frail elderly.

This writer, Julie Boggess, most recently the CEO for Bethesda Rehab and Senior Care in Chicago, admits that "regulations are needed and should serve as the foundation of quality care and service."  But, her final words are especially sobering:

But when things like a missing word in a policy or one missed temperature log recording or a date label that fell off a frozen bag of beans is more important than resident and family satisfaction and outcomes of care, there is a serious problem, and it is driving passionate hard-working individuals out of this industry.

 

The conclusion that propelled me out of this industry is that I, and my staff, were in the quest for quality and culture change alone. The government is nothing but an impediment. I thought the goal was to improve quality care, but if the real goal is to push out good people from the industry, then the government is wildly successful.

Lots to think about here.

April 10, 2018 in Consumer Information, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Statutes/Regulations | Permalink | Comments (0)

Sunday, April 8, 2018

Are States' "Slayer Laws" Preempted by ERISA Rules on Entitlement to Pension Survivor Benefits?

Here's an unusual case to start off a new week.  In Laborer's Pension Fund v. Miscevic, the 7th Circuit faced interesting statutory interpretation questions about whether "survivor" benefits available under a murdered's man's pension must be paid to the very woman who killed him, his "surviving" wife.   

The first question focused on ERISA's rules, asking whether the federal law (which does not contain "slayer" provisions) preempted any disqualifying effect of state slayer laws.  Ultimately, considering the issue as a matter of first impression for federal appellate courts, the 7th Circuit rejected the ERISA preemption argument.   

But that left the question of the effect of the Illinois law in light of additional, unique facts. The wife argued her state criminal court verdict of "not guilty by reason of insanity" barred the disqualifying effect of the Illinois slayer statute.  The Court analyzed similar language of the Illinois slayer statute and the Illinois insanity law and concluded:

Put simply, an individual may not appreciate the criminality of her conduct, but still have "intentionally" and "unjustifiably" cased a death. Indeed, in this case, the judge at [the wife's] criminal trial made an explicit finding that [she] intended to murder [her husband] "without justification," despite concluding [she] was not guilty by reason of insanity."

Noting a split among state courts in analyzing the effect of "not guilty by reason of insanity" on entitlement to inheritance under other states' slayer laws, with Mississippi and New Jersey permitting recovery by a party deemed insane at the time of the murderous act, the 7th Circuit concluded that Illinois would not follow that path.  The Court concluded that the Illinois slayer statute barred this wife from recovering her husband's pension benefits.

This case is interesting for reasons other than interpretation of the federal and state laws. The case was filed as an interpleader by the Pension Fund, as the Fund had received conflicting claims for survivor benefits from the wife and the couple's 11 year old daughter.  The minor-aged daughter will now take the survivor benefits, but, the "minor child benefit" for the plan lasts only until the minor is 21.  It is perhaps an unfortunate side effect of an already sad case that without the murderous facts, the wife would have been a survivor until her death, but the innocent (and, perhaps, needy) daughter's survivor benefits will terminate after 10 years.  Should there be the option to treat any benefits payable to someone deemed "not guilty of murder by reason of insanity" as being subject to a constructive trust in favor of the next of kin?   

My thanks to always eagle-eyed attorney Thomas Murphy in Phoenix, Arizona for sending the report on the 7th Circuit case, decided January 29, 2018.  

 

April 8, 2018 in Cognitive Impairment, Crimes, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations | Permalink | Comments (0)

Monday, April 2, 2018

Another Avenue in the Opioid Fight-This Time from Medicare

There have been innumerable articles about the opioid crisis and how to crack down on abuses. Medicare has joined the fight, announcing a limit on coverage of opioids. Medicare Is Cracking Down
on Opioids. Doctors Fear Pain Patients Will Suffer explains that Medicare concluded that it "would now refuse to pay for long-term, high-dose prescriptions; a rule to that effect is expected to be approved on April 2."  Typically prescribing is the doctor's decision and this rule is may have wide-ranging impact, especially on those who are taking opioids appropriately. What happens to those who can't get their prescriptions refilled under Medicare as a result of this rule?  One expert explained "'[t]he decision to taper opioids should be based on whether the benefits for pain and function outweigh the harm for that patient,” said ... an opioid researcher and associate professor at Albert Einstein College of Medicine. 'That takes a lot of clinical judgment. It’s individualized and nuanced. We can’t codify it with an arbitrary threshold.'"

The article explains that under this new rule Medicare's coverage would be limited to "seven days of prescriptions equivalent to 90 milligrams or more of morphine daily, except for patients with cancer or in hospice."

What is the purpose of this rule, other than a response to the opioid crisis? The article references an unnamed Medicare official "ho would speak only on background said that the limit for monthly high doses was intended not only to catch doctors who over-prescribe, but also to monitor patients who, wittingly or not, accumulate opioid prescriptions from several doctors. When the dose is flagged, the pharmacist or patient alerts the doctor."  This means that the pharmacist will be a key player in this rule.  The rule will have an appeals process that a doctor can pursue, but keep in mind the time it takes for an appeal, and a doctor's patient load, resulting in a time period where the patient would be without pain meds of this type.

The article ends quoting one doctor about the potential impact of the rule whose "concern is that our results could be used to justify aggressive tapering or immediate discontinuation in patients, and that could harm people — even if opioids have no benefit for their pain ...  [and] [e]ven if we walk away from using opioids for back and knee pain, we can’t walk away from patients who have been treated with opioids for years or even decades now.... "  The doctor added that there is  looming "'a double tragedy for these people.'"

April 2, 2018 in Consumer Information, Crimes, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Wednesday, March 28, 2018

From the Boston Globe, A Story That Raises Lots of Questions about Timeliness of VA Aid & Attendance Benefits

The Boston Globe has a lengthy article about one couple's struggle to get VA approval for Aid & Attendance pension benefits when they transferred from their own home to a nursing home.  Oddly, the delays in approval appear to be tied, at least in part, to the contention that as both the husband and the wife were Marine veterans, the applications must be processed "simultaneously."  Is that really true?  Here are some of the key -- and often sad -- details of the family's struggle:

 

Moseley [an director at the couple's nursing home] said she placed several calls to the VA while Robert DiCicco [85 year-old husband] the listened from his wheelchair. Each call ended the same way — no approval, no update on where things stood, no firm information at all.

 

“I told them that these veterans could be homeless if it wasn’t for our home taking them in, and that they needed to be approved very soon,” Moseley said. “It wasn’t something that was very important to the VA. The disappointment that would come across his face was heartbreaking.” In her 35-year career, Moseley said, she has never handled a more difficult case involving the VA.

 

VA officials said the DiCicco case is complicated because, under law, pension claims for two married veterans must be processed simultaneously, and that [wife] Mary Lou DiCicco’s claim required additional, time-consuming verification of her military service. 

 

The VA said that “regrettably, our efforts to establish entitlement resulted in delays.”

The agency needed only 59 days on average to resolve pension claims in February, including aid and attendance requests, the VA said. The overall goal is to resolve all claims, including disability and pension applications, within 125 days — a standard that was met 91 percent of the time in fiscal 2017, said James Blue, spokesman for the VA’s North Atlantic District. 

 

But many veterans advocates and lawyers who work on VA claims said the process often can take 12 to 18 months. Lesa Jacob-Pollich, the veterans service officer for Saline County, where the DiCiccos live, said she watched helplessly while the family waited month after month for an answer.

For the full story, read For These Veterans, Dealing with VA Has Been A Relentless Fight, by Brian MacQuarrie for the Boston Globe, published March 24, 2018.

March 28, 2018 in Consumer Information, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Veterans, Webinars | Permalink | Comments (0)

Friday, March 23, 2018

National Council on Disability Calls for Nationwide Reforms for Guardianships

On March 22, 2018, the National Council on Disability (NCD) released a new 200-page report and recommendations,  calling for substantial reform of the rules and processes used to place individuals with disabilities or the elderly under guardianships. 

As set forth in the press release, NCD's findings include:

  • Guardianship is often imposed when not warranted by facts or circumstances, because guardianship proceedings often operate under erroneous assumptions that people with disabilities lack capability to make autonomous decisions.
  • Capacity determinations often lack sufficient scientific or evidentiary basis.
  • Although guardianship is considered a protective measure, courts often lack adequate resources, technical infrastructure, and training to monitor guardianships effectively and hold guardians accountable, which at times allows for guardians to use their positions to financially exploit people subject to guardianships or subject them to abuse or neglect.
  • People with disabilities are often denied due process rights in guardianship proceedings. 
  • Although most state laws require consideration of less-restrictive alternatives, courts do little to enforce those requirements.
  • Similarly, though every state has a process for the restoration of one’s rights lost through guardianship, the process is rarely used.
  • There is a lack of data on existing guardianships and newly filed guardianships, which frustrates efforts of policymakers to make determinations about necessary areas for reform.

NCD also makes seven sets of specific recommendations, often calling upon the U.S. Department of Justice to take a leadership position in protecting the civil rights of individuals, including providing states with guidance and support for review of existing guardianships with a goal of assessing the potential for restoration of rights.  

Here is a link providing access to the full report, Beyond Guardianship: Toward Alternative That Promote Greater Self-Determination, and to a literature review, and to a qualitative research report summary in support of the NCD recommendations.

My special thanks to Pennsylvania Superior Court Judge Paula Ott for sending me timely information on these publications.

March 23, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Thursday, March 22, 2018

Free Webinar Protecting Elders From Scams

The National Center of Law & Elder Rights has announced their next webinar,  Legal Basics: Protecting Older Adults Against Fraudulent Schemes and Scams. The webinar is scheduled for April 10, 2018 at 2 edt.  Here's a description of the webinar:

With savings and assets accumulated over a lifetime, older adults are attractive targets for individuals promoting fraudulent schemes and scams. Scammers use deception, misrepresentation and threats to convince older adults to send money or provide personal financial information. Most frauds and scams go unreported. 

This webcast will provide an overview of the frauds and scams aimed at older adults, discuss legal protections, and provide resources to aid older adults defrauded by the individuals and business that promote these scams. The webcast will also focus on efforts by the Federal Trade Commission to prevent older adults from falling victim to these scams. 

To register for this free webinar, click here.

March 22, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink | Comments (0)

Tuesday, March 20, 2018

Senate Committee on Aging: Top 10 Elder Scams

A little mid-week reading for you. The Senate Committee on Aging has released their 2018 Fraud Book, listing the top 10 elder scams of 2018.  Fighting Fraud: Senate Aging Committee Identifies Top 10 Scams Targeting Our Nation’s Seniors  lists the top 10 scams of the year, based on reports to the hotline, which are (drum roll please) 

IRS Impersonation Scams

Robocalls and Unsolicited Phone Calls

Sweepstakes Scams / Jamaican Lottery Scams

"Can You Hear Me?” Scams

Grandparent Scams

Computer Tech Support Scam

Romance Scams

Elder Financial Abuse

Identity Theft

Government Grant Scams

Here is the executive summary for the report:

From January 1, 2017, through December 31, 2017, the Senate Aging Committee’s Fraud Hotline received a total of 1,463 complaints from residents all across the country. Calls pertaining to the top 10 scams featured in this report accounted for more than 75 percent of the complaints.

                The top complaint, the focus of more than twice as many calls as any other scam, involves seniors who receive calls from fraudsters posing as agents of the Internal Revenue Service (IRS). These criminals falsely accuse seniors of owing back taxes and penalties in order to scam them. Due to the extremely high call volume and continued reports from constituents from across the country, the Aging Committee held a hearing on April 15, 2015, to investigate and raise awareness about the IRS imposter scam. Prior to a large law enforcement crackdown in October 2016, nearly three out of four calls to our Hotline involved the IRS impersonation scam. In the three months after the arrests, reports of the scam into the Committee’s hotline dropped by an incredible 94 percent. Though the numbers have since rebounded somewhat, they are still far below the levels we have seen in the past.

                The second most common scam reported to the Hotline involved robocalls or unwanted telephone calls. On June 10, 2015, the Aging Committee held a hearing on the increase in these calls that are made despite the national Do-Not-Call Registry. The Committee examined how the rise of new technology has made it easier for scammers to contact and deceive consumers and has rendered the Do-Not-Call registry ineffective in many ways. On October 4, 2017, the Aging Committee held an additional hearing on robocalls, this time examining recent developments by both the private and public sectors to combat robocalls and protect seniors from fraud.

Sweepstakes scams, such as the Jamaican lottery scam, continue to be a problem for seniors, placing third on the list. A March 13, 2013, Aging Committee hearing and investigation helped bring attention to these scams and put pressure on the Jamaican government to pass laws cracking down on criminals who convinced unwitting American victims that they had been winners of the Jamaican lottery. The United States government has had some recent success in bringing individuals connected to the Jamaican lottery scam to trial, but these types of scams continue to plague seniors.

A new scam to make the top 10 list for 2017 involves consumers receiving calls in which the caller would simply ask “Are you there?” or “Can you hear me?” in order to prompt the recipient to say “yes.” According to the Federal Trade Commission (FTC), these illegal robocalls are pre-recorded, and are

designed to identify numbers that consumers are likely to answer, allowing scammers to better identify and connect with potential victims. The increased use of this tactic by scammers in robocalls last year demonstrates how sophisticated scammers are.

Grandparent scams, the focus of a July 16, 2014, Aging Committee hearing, were next on the list. In these scams, fraudsters call a senior pretending to be a family member, often a grandchild, and claim to be in urgent need or money to cover an emergency, medical care, or a legal problem.

Computer scams were sixth on the list and the subject of an October 21, 2015, Committee hearing. Although there are many variations of computer scams, fraudsters typically claim to represent a well-known technology company and attempt to convince victims to provide them with access to their computers. Scammers often demand that victims pay for bogus tech support services through a wire transfer, or, worse yet, obtain victims’ passwords and gain access to financial accounts.

Romance scams were seventh on the list. These calls are from scammers who typically create a fake online dating profile to attract victims. Once a scammer has gained a victim’s trust over weeks, months, or even years – the scammer requests money to pay for an unexpected bill, an emergency, or another alleged expense or to come visit the victim – a trip that will never occur.

Elder financial abuse was eighth on the list and the topic of a February 4, 2015, Committee hearing. The calls focused on the illegal or improper use of an older adult’s funds, property, or assets. Chairman Susan M. Collins, former Ranking Member Claire McCaskill, and current Ranking Member Robert P. Casey Jr. have introduced the Senior $afe Act, which would allow trained financial services employees to report suspected cases of financial exploitation to the proper authorities without concern that they would be sued for doing so. The Committee also examined the financial abuse of guardians and other court appointed fiduciaries at a hearing in November 2016.

Identify theft was the ninth most reported consumer complaint to the Fraud Hotline in 2017. This wide-ranging category includes calls about actual theft of a wallet or mail, online impersonation, or other illegal efforts to obtain a person’s identifiable information. On October 7, 2015, the Aging Committee held a hearing titled “Ringing Off the Hook: Examining the Proliferation of Unwanted Calls”, to assess the federal government’s progress in complying with a new law requiring the removal of seniors’ Social Security numbers from their Medicare cards, which will help prevent identity theft. Medicare will start mailing the new cards in April 2018.

            Government grant scams rounded out the top 10 scams to the Fraud Hotline last year. In these scams, thieves call victims and pretend to be from a fictitious “Government Grants Department.” The con artists then tell the victims that they must pay a fee before receiving the grant.

The report is available here.

From January 1, 2017, through December 31, 2017, the Senate Aging Committee’s Fraud Hotline received a total of 1,463 complaints from residents all across the country. Calls pertaining to the top 10 scams featured in this report accounted for more than 75 percent of the complaints.

                The top complaint, the focus of more than twice as many calls as any other scam, involves seniors who receive calls from fraudsters posing as agents of the Internal Revenue Service (IRS). These criminals falsely accuse seniors of owing back taxes and penalties in order to scam them. Due to the extremely high call volume and continued reports from constituents from across the country, the Aging Committee held a hearing on April 15, 2015, to investigate and raise awareness about the IRS imposter scam. Prior to a large law enforcement crackdown in October 2016, nearly three out of four calls to our Hotline involved the IRS impersonation scam. In the three months after the arrests, reports of the scam into the Committee’s hotline dropped by an incredible 94 percent. Though the numbers have since rebounded somewhat, they are still far below the levels we have seen in the past.

                The second most common scam reported to the Hotline involved robocalls or unwanted telephone calls. On June 10, 2015, the Aging Committee held a hearing on the increase in these calls that are made despite the national Do-Not-Call Registry. The Committee examined how the rise of new technology has made it easier for scammers to contact and deceive consumers and has rendered the Do-Not-Call registry ineffective in many ways. On October 4, 2017, the Aging Committee held an additional hearing on robocalls, this time examining recent developments by both the private and public sectors to combat robocalls and protect seniors from fraud.

Sweepstakes scams, such as the Jamaican lottery scam, continue to be a problem for seniors, placing third on the list. A March 13, 2013, Aging Committee hearing and investigation helped bring attention to these scams and put pressure on the Jamaican government to pass laws cracking down on criminals who convinced unwitting American victims that they had been winners of the Jamaican lottery. The United States government has had some recent success in bringing individuals connected to the Jamaican lottery scam to trial, but these types of scams continue to plague seniors.

A new scam to make the top 10 list for 2017 involves consumers receiving calls in which the caller would simply ask “Are you there?” or “Can you hear me?” in order to prompt the recipient to say “yes.” According to the Federal Trade Commission (FTC), these illegal robocalls are pre-recorded, and are

designed to identify numbers that consumers are likely to answer, allowing scammers to better identify and connect with potential victims. The increased use of this tactic by scammers in robocalls last year demonstrates how sophisticated scammers are.

Grandparent scams, the focus of a July 16, 2014, Aging Committee hearing, were next on the list. In these scams, fraudsters call a senior pretending to be a family member, often a grandchild, and claim to be in urgent need or money to cover an emergency, medical care, or a legal problem.

Computer scams were sixth on the list and the subject of an October 21, 2015, Committee hearing. Although there are many variations of computer scams, fraudsters typically claim to represent a well-known technology company and attempt to convince victims to provide them with access to their computers. Scammers often demand that victims pay for bogus tech support services through a wire transfer, or, worse yet, obtain victims’ passwords and gain access to financial accounts.

Romance scams were seventh on the list. These calls are from scammers who typically create a fake online dating profile to attract victims. Once a scammer has gained a victim’s trust over weeks, months, or even years – the scammer requests money to pay for an unexpected bill, an emergency, or another alleged expense or to come visit the victim – a trip that will never occur.

Elder financial abuse was eighth on the list and the topic of a February 4, 2015, Committee hearing. The calls focused on the illegal or improper use of an older adult’s funds, property, or assets. Chairman Susan M. Collins, former Ranking Member Claire McCaskill, and current Ranking Member Robert P. Casey Jr. have introduced the Senior $afe Act, which would allow trained financial services employees to report suspected cases of financial exploitation to the proper authorities without concern that they would be sued for doing so. The Committee also examined the financial abuse of guardians and other court appointed fiduciaries at a hearing in November 2016.

Identify theft was the ninth most reported consumer complaint to the Fraud Hotline in 2017. This wide-ranging category includes calls about actual theft of a wallet or mail, online impersonation, or other illegal efforts to obtain a person’s identifiable information. On October 7, 2015, the Aging Committee held a hearing titled “Ringing Off the Hook: Examining the Proliferation of Unwanted Calls”, to assess the federal government’s progress in complying with a new law requiring the removal of seniors’ Social Security numbers from their Medicare cards, which will help prevent identity theft. Medicare will start mailing the new cards in April 2018.

            Government grant scams rounded out the top 10 scams to the Fraud Hotline last year. In these scams, thieves call victims and pretend to be from a fictitious “Government Grants Department.” The con artists then tell the victims that they must pay a fee before receiving the grant.

rant.

TThe 60 page report is available here.

March 20, 2018 in Books, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink

Sunday, March 18, 2018

No Right To Try Law Yet

Two weeks ago we reported that the House of Representatives were scheduled to vote on the Right to Try Bill that had previously passed the Senate.  If you were betting that the House would also pass the bill, you would be .... wrongHouse Rejects Bill to Give Patients a ‘Right to Try’ Experimental Drugs explains the vote wasn't particularly close.  "The bill was considered under special fast-track procedures that required a two-thirds majority for passage, and it fell short. When the roll was called, 259 House members supported the bill, and 140 opposed it." Those that voted against the bill, the majority Democrats, were worried about patient harms, whether creating false hope or harming patients since the drugs wouldn't have gone through the rigorous FDA process. The article quotes one of the House leadership that the bill will be brought back for another vote, but even so there is no guarantee of passage. There are a number of opponents to the bill, including medical personnel and patient advocaates.  "[M]ore than 75 patient advocacy groups, including the lobbying arm of the American Cancer Society, opposed the bill. .. The American Medical Association said it “does not believe that the bill will substantially improve patient access to investigational therapies.” And the American Society of Clinical Oncology, representing cancer doctors, said the bill “could do more harm than good for patients with life-threatening illnesses” because it would remove the Food and Drug Administration from the evaluation of the risks and potential benefits of some treatments."

A House Committee will address the bill on March 19, according to a March 16, 2018 post from Bloomberg BNA Health Care Daily report so stay tuned.

March 18, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0)

Tuesday, March 13, 2018

House to Vote on Right To Try Bill

We have previously blogged about right to try laws and the bill making its way through Congress. The House of Representatives is scheduled to vote on the bill today according to the March 12, 2018 Bloomberg's Health Care Daily Report (subscription required). The Report explains

The bill set to be voted on in the House narrowed the Senate-passed version’s definition of who could seek unapproved drugs to “strike the right balance for patients and their safety,” Reps. Greg Walden (R-Ore.), chairman of the House Energy and Commerce Committee, and Michael Burgess (R-Texas), head of the panel’s health subcommittee, said in a joint statement.

If passed, the Senate will have to vote again on the measure or, less likely, form a conference committee to work out the differences, according to a statement from House Majority Leader Rep. Kevin McCarthy (R-Calif.).

I'll report back once we know more.

March 13, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0)

Thursday, March 8, 2018

Young Blood for Anti-Aging?

The subject of this story caught me off guard, having not contemplated it.  Stat ran the story, How a society gala was used to sell young-blood transfusions to baby boomers desperate to cheat death.

The story focuses on a luncheon event in south Florida where audience members were pitched on "[p]aying to participate in a soon-to-launch clinical trial testing transfusions of young blood [which] “offers the greatest potential for everyone in this room to add a lot of healthy years to their life... 'Not only do you get to potentially live longer … but you’re going to be healthier. And some of the chronic problems you have now may disappear.'”  Stat had a number of medical experts review the materials for the clinical trial "and all sharply criticized the study’s marketing, design, and scientific rationale."  Although the final price has yet to be determined, one suggested cost for the treatment was over a quarter of a million dollars.

The article discusses what is involved in clinical trials, other trials with similar goals and general reactions to the proposal.  It is a fascinating article.  It can be used as a jumping off point for a discussion about ageism.

 

 

March 8, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0)

Monday, March 5, 2018

Surgery Late in Life?

Kaiser Health News ran the story, Never Too Late To Operate? Surgery Near End Of Life Is Common, Costly that opens with this startling statistic: "Nearly 1 in 3 Medicare patients undergo an operation in their final year of life." Several paragraphs into the story the quote is repeated, but with this additional information: "[n]early 1 in 3 Medicare patients undergo an operation in the year before they die, even though the evidence shows that many are more likely to be harmed than to benefit from it."

So why does this happen? According to the article, there are financial incentives plus we are dealing with a "medical culture" where "patients and doctors are reluctant to talk about how surgical interventions should be prescribed more judiciously.... "  The article discusses several surveys regarding surgeries in the older population with the benefits and burdens from such surgeries.  As well, there are significant implications for elders undergoing surgery, including longer recovery time and less tolerance with anesthesia.

Thinking through medical treatment options takes time. One tool being developed by "[m]any hospitals and health systems is ... “decision aids,” easy-to-understand written materials and videos to help patients make more informed medical decisions, giving them time to develop more realistic expectations." Another approach discussed in the article is a move away from the use of statistics and instead have the focus on narratives where the "doctors should lay out the best, worst and most likely outcomes."  If the best cases scenario resulting from the medical intervention isn't something that the patient finds acceptable, then that's a big indicator that the patient should not undergo the medical intervention.

Interesting ideas!

March 5, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Tuesday, February 27, 2018

Medicare Good News...and not... out of the Bipartisan Budget Act of 2018

As part of the Bipartisan Budget Act of 2018,  signed into law earlier in February, Medicare's therapy caps were repealed!  As explained by Justice in Aging in a recent fact sheet, ""[t]he law permanently repeals the payment cap on outpatient physical, occupational, and speech therapies effective January 1, 2018, and makes changes to the medical necessity review process for these services." As well, the law closes the donut hole one year earlier, "at which time beneficiaries will be required to contribute 25% to the cost of prescription drugs. This provision does not affect coverage for beneficiaries who receive the Part D low-income subsidy known as “Extra Help,” since they already don’t experience the donut hole."

Then there is the change to Home Health Care, starting in 2020, where "[t]he home health payment episode will be reduced from 60 days to 30 days and therapy thresholds will be eliminated. Beginning in 2019, Medicare will be allowed to base eligibility determinations for home health services on a review of the patient’s medical record including a home health agency’s record beginning in 2019."  As well, the Part B and D premiums for higher income beneficiaries will go up starting in 2019.

To read the entire fact sheet, click here.

 

February 27, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink

U.S. Supreme Court Agrees to Hear Death Penalty Case; Inmate Has Suffered Multiple Strokes & Dementia

One of my well-rounded Contracts students, Andrew Ford, pointed out to me that this week the Supreme Court agreed to hear the case of Madison v. Alabama, wherein the issue is whether execution of a prisoner violates the 8th Amendment if the inmate, who has experienced multiple strokes and vascular dementia, is now severely impaired and no longer has any memory of his crime.  From the Petition for Writ of Certiorari:

[T]he State seeks for the second time to execute Vernon Madison, a 67-year-old man who has been on Alabama’s death row for over 30 years. Mr. Madison suffers from vascular dementia as a result of multiple serious strokes in the last two years, and no longer has a memory of the commission of the crime for which he is to be executed. His mind and body are failing: he suffers from encephalomacia (dead brain tissue), small vessel ischemia, speaks in a dysarthric or slurred manner, is legally blind, can no longer walk independently, and has urinary incontinence as a consequence of damage to his brain.

Thank you, Andrew!  Here's the link to comprehensive coverage on the case from SCOTUS Blog

February 27, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations | Permalink | Comments (0)

Monday, February 26, 2018

Center for Medicare Advocacy Upcoming Conference

Registration is open for the Center for Medicare Advocacy's 5th Annual National Voices of Medicare Summit & Sen. Jay Rockefeller Lecture on March 22, 2018. The conference runs from 8:30 a.m. to 5 p.m. at the Kaiser Family Foundation, 1330 G Street, NW in Washington, D.C.  Here's a brief description about the program

Join us for our 5th annual National Voices of Medicare Summit & Senator Jay Rockefeller Lecture! Connect with leading experts and advocates to discuss best practices, challenges and successes in efforts to improve access to quality health coverage and care. Be a part of the conversation on health care activism, civic engagement, and efforts to preserve (and enhance) the Affordable Care Act, Medicare, and Medicaid. We're honored to have Senators Chris Murphy and Jay Rockefeller present to help participants think about building a healthy future for all Americans.

Senator Murphy from Connecticut will present the Rockefeller lecture.  For more information, click here.  To register, click here.

February 26, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Programs/CLEs | Permalink

Sunday, February 25, 2018

Md Court of Appeals Permits AG's "Improper Discharge" Suits Against Nursing Homes

As we've highlighted in recent posts on this blog, discharge or eviction of residents by nursing homes  -- also known as "patient dumping" -- is a hot topic right now, and the latest important news is from the highest tribunal in the State of Maryland, the Court of Appeals.  The Court tackles head-on the issue of who has the power to take action to address improper discharges.   

On February 20, 2018, the Maryland Court of Appeals concluded that as a matter of first impression, the Maryland Attorney General has the authority to bring suit on behalf of "multiple facility residents for unlawful discharge."  Further, the AG is permitted to seek injunctive relief to require a facility to assist residents receiving Medicaid benefits. 

In so ruling, the Court relied on specific provisions of Maryland's statutory Patient Bill of Rights (rather than similar federal law) enacted in the mid 1990s, saying the legislation demonstrated the General Assembly's clear "intent to limit involuntary discharges and transfers and to ensure that when they do occur, they are subject to procedural controls ensuring  a resident's health and safety." The Court did, however, look to federal precedent for authority to grant specific injunctive relief.

The Court rejected arguments by the challenging party, Neiswanger Management Services LLC, that operated 4 nursing facilities in Maryland.  The company claimed its signing of a Memorandum of Understanding with state authorities rendered moot all issues it had with the state.  As part of its ruling, the Court reviewed the history of State violations alleged against Neiswanger, including the State's assertion that during one 17-month period, Neiswanger had issued involuntary discharge notices to "at least 1,601 residents," in contrast to only 510 such notices issued during the same period of time by all of Maryland's other 225 licensed nursing facilities. The Court concluded, "Neiswanger has not met its burden of demonstrating to this Court that the case is moot."

There is a lot of meat to the ruling by the Maryland Court of Appeals, especially with respect to the impact of low reimbursement rates under Medicaid, as compared to Medicare's 100 days of coverage. For the full ruling, see  State of Maryland v. Neiswanger Management Services LLC.

For the AG's own description of the ruling, see the Maryland AG Press Release on February 21, 2018.

See also the recent Business Section article from the New York Times, How to Challenge a Nursing Home Eviction Notice and Other Tips.  

February 25, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, February 23, 2018

NYT: Focus is on Nursing Home Evictions and the Reality of Underfunding of Long-Term Care

The New York Times offers an important feature article, entitled Complaints About Nursing Home Evictions, and Regulators Take Note.  From the opening paragraphs:

Six weeks after Deborah Zwaschka-Blansfield had the lower half of her left leg amputated, she received some news from the nursing home where she was recovering: Her insurance would no longer pay, and it was time to move on.

 

The home wanted to release her to a homeless shelter or pay for a week in a motel.“That is not safe for me,” said Ms. Zwaschka-Blansfield, 59, who cannot walk and had hoped to stay in the home, north of Sacramento, until she could do more things for herself — like getting up if she fell.

 

Her experience is becoming increasingly common among the 1.4 million nursing home residents across the country. Discharges and evictions have been the top-ranking category of grievances brought to state long-term care ombudsman programs, the ombudsman agencies say.

This article is definitely worth a careful read.    

February 23, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)