Monday, November 13, 2017

Veterans Victims of Financial Elder Abuse

Boots on the Ground - Fighting Financial Abuse of Elder Veterans explains the Veterans Benefits Protection Project. "One form of financial abuse targets elder veterans and their families, promising to assist them with qualifying for veterans benefits through the sale of unsuitable financial products and irrevocable living trusts. These scams threaten the health, safety, and financial well-being of thousands of elder veterans across the country."  The project started "outreach and website last Veterans Day to share reliable resources for veterans and professionals working with veterans. Since then, the IOA has conducted 14 trainings to over 725 individuals, notified and trained administrators at all licensed residential care facilities and senior centers in San Francisco about the scam, and received an Aging Innovation Award from the National Association of Area Agencies on Aging."

Here's an explanation about the scam

Financial predators have been making large commissions by selling medium-and-high wealth seniors unnecessary or unsuitable financial products or services. They tell the seniors that in order to get the benefit, they need to “appear impoverished,” and they can accomplish that by converting their assets into their “veteran-friendly estate plan.” Seniors who follow their advice end up with irrevocable trusts or financial products that tie up their money so they cannot access it for the rest of their lives, while the predators walk away with large commissions or service fees for their “help.”

This multi-agency project offers resources and materials for veterans and families and professionals working with veterans.

November 13, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Veterans | Permalink | Comments (0)

Sunday, November 12, 2017

Younger Retirees or Soon to Retire--Cost of Health Insurance

Kaiser Health News wrote about those in their 50s and early 60s who face retirement but are not yet eligible for Medicare. Rising Health Insurance Costs Frighten Some Early Retirees focuses on the ACA's exchanges which are expected to increase costs a lot at least partially due to the "administration’s decision to stop payments to insurers to cover the discounts they are required to give to some low-income customers to cover out-of-pocket costs." The article also mentions the constant focus on repeal and replace by Congress that creates a lot of uncertainty. It's not just about costs, but the variations amongst the states can also create unease. The increased costs may lead some to forego health insurance completely, especially, it is speculated, by those who get no subsidies.

There are already signs of that, according to an analysis for this article by the Commonwealth Fund. The percentage of 50- to 64-year-olds who were uninsured ticked up from 8 percent in 2015 to 10 percent in the first half of 2017. In 2013, the figure was 14 percent.

Indeed, the ACA has been a boon to people in this age group whether they get a subsidy or not. It barred insurers from excluding people with preexisting conditions — which occur more commonly in older people. And the law restricted insurers from charging 55- to 64-year-olds more than three times that of younger people, instead of five times more, as was common.

The law also provided much better access to health insurance for early retirees and the self-employed — reducing so-called “job lock” and offering coverage amid a precipitous decline in employer-sponsored retiree coverage that began in the late 1990s.

Stay tuned.

November 12, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Tuesday, November 7, 2017

Check Out This New Report: New Guide on HCBS Settings Rule

The National Consumer Voice for Quality Long Term Care has issued a new guide, Understanding and Advocating for Effective Implementation of the Home and Community-Based Services Settings Rule.

Here's the introduction to the guide:

An important part of the practice of many elder law attorneys is assisting clients to receive and then benefit from Medicaid home and community-based services (HCBS). In March 2014, the Centers for Medicare and Medicaid Services (CMS) published the first ever regulations establishing standards for the settings in which HCBS are provided.1 These regulations will impact the services, quality of life, and rights of HCBS care recipients, as well as the environment in which they receive those services. Each state must develop and implement a plan for how it will come into compliance with the HCBS rules. The involvement of advocates, including elder law attorneys, in influencing the plan and monitoring its implementation is critical. This guide is designed to provide elder law attorneys with a better understanding of the HCBS settings rule and how they can advocate for a strong, effective system that achieves the spirit and intent of the rule.

The report notes that the reason for "HCBS Medicaid services is to be an alternative to institutional settings."  Thus, the rule's main reason "is to define the qualities that make a setting a home that is truly part of a larger community." Additionally, the rule is designed to confirm that those recipients really are part of their community. Last, but not least, the rule is intended to make the lives of these folks better as well as getting them more choice and protections. The report can be downloaded here.

 

 

 

November 7, 2017 in Consumer Information, Current Affairs, Discrimination, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid | Permalink | Comments (0)

Thursday, November 2, 2017

Tired of Those RoboCalls?

You aren't the only one.  A number of times elders are targets.  The Senate Special Committee on Aging held a hearing on October 4, 2017, "Still Ringing Off The Hook: An Update on Efforts to Combat Robocalls”    The testimony came from two committee members and 4 witnesses, including Lois Greisman, the Associate Director, Division of Marketing Practices, Bureau of Consumer Protection of the FTC and PA AG Josh Shapiro. You can watch the video of the hearing or download individual testimony as pdfs by clicking here.

November 2, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Other, State Statutes/Regulations | Permalink

Wednesday, November 1, 2017

LeadingAge: Hot Topics for Attorneys Who Advise Clients in Senior Housing and Service Industries

LeadingAge 2017 Hot Topics  for Lawyers Advising in Senior LivingThis week, the last session I was able to attend at LeadingAge's annual meeting was a panel talk on "Legal Perspectives from In-House Counsel."  As expected, some of the time was spent on questions about "billing" by outside law firms, whether hourly, flat-fee or "value" billing was preferred by the corporate clients.  

But the panelists, including Jodi Hirsch, Vice President and General Counsel for Lifespace Communities with headquarters in Des Moines, Iowa; Ken Young, Executive VP and General Counsel for United Church Homes, headquartered in Ohio; and "outhouse" counsel Aric Martin, managing partner at the Cleveland, Ohio law firm of Rolf, Goffman, Martin & Long, offered a Jeopardy-style screen, with a wide array of legal issues they have encountered in their positions.  I'm sorry I did not have time to stay longer after the program, before heading to the airport.  They were very clear and interesting speakers, with healthy senses of humor.

The topics included responding to government investigations and litigation; vetting compliance and ethics programs to reduce the likelihood of investigations or litigation; cybersecurity (including the need for encryption of lap tops and cell phones which inevitably go missing); mergers and acquisitions; contract and vendor management; labor and employment; social media policies; automated external defibrillators (AEDs); residency agreements; attorney-client privilege; social accountability and benevolent care (LeadingAge members are nonprofit operators); ACO/Managed Care issues; Fair Housing rules that affect admissions, transfers, dining, rooms and "assistance animals"; tax exemption issues (including property and sale tax exemptions); medical and recreational marijuana; governance issues (including residents on board of directors); and entertainment licensing.

Whew!  Wouldn't this be a great list to offer law students thinking about their own career opportunities in law, to help them see the range of topics that can come up in this intersection of health care and housing?  The law firm's representative on the panel has more than 20 lawyers in the firm who work solely on senior housing market legal issues.

On that last issue, entertainment licensing, I was chatting after the program with a non-lawyer administrator of a nursing and rehab center in New York, who had asked the panel about whether nonprofits "have" to pay licensing fees when they play music and movies for residents.   The panelists did not have time to go into detail, but they said their own clients have decided it was often wisest to "pay to play" for movies and videos.  Copyright rules and the growing efforts to ensure payments are the reasons.  

The administrator and I chatted more, and she said her business has been bombarded lately by letters from various sources seeking to "help" her company obtain licenses, but she wanted to know more about why.  For the most part, the exceptions to licensing requirements depend on the fairly broad definition of "public" performances, and not on whether the provider is for-profit or nonprofit.  

It turns out that LeadingAge, along with other leading industry associations, negotiated a comprehensive licensing agreement for showing movies and videos in "Senior Living and  Health Care Communities" in 2016.  Details, including discussion of copyright coverage issues for entertainment in various kinds of care settings, are here.   

November 1, 2017 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, October 31, 2017

What is the Difference Between Original Medicare and Part C?

We are in the thick of Medicare enrollment, so the story from Kaiser Health News explaining the differences between original Medicare and Medicare Advantage is quite timely. Medicare Vs. Medicare Advantage: How To Choose  reports that the Part C offerings are pretty stable for 2018 and in fact there are available the highest number plans for purchase all over the US.   The article explains some of the foundational concepts for Part C plans:

Basics:

Medicare Advantage plans must provide the same benefits offered through traditional Medicare (services from hospitals, physicians, home health care agencies, laboratories, medical equipment companies and rehabilitation facilities, among others). Nearly 90 percent of plans also supply drug coverage.

Pros from CMS:

Little paperwork. (Plan members don’t have to submit claims, in most cases.)... An emphasis on preventive care...Extra benefits, such as vision care, dental care and hearing exams, that aren’t offered under traditional Medicare....An all-in-one approach to coverage. (Notably, members typically don’t have to purchase supplemental Medigap coverage or a standalone drug plan.)....Cost controls, including a cap on out-of-pocket costs for physician and hospital services (Medicare Part A and B benefits).

Cons from CMS:

Access is limited to hospitals and doctors within plan networks. (Traditional Medicare allows seniors to go to whichever doctor or hospital they want. ...Techniques to manage medical care that can erect barriers to accessing care (for example, getting prior approval from a primary care doctor before seeing a specialist).... Financial incentives to limit services. (Medicare Advantage plans receive a set per-member-per-month fee from the government and risk losing money if medical expenses exceed payments.) ... Limits on care members can get when traveling. (Generally, only emergency care and urgent care is covered.) ... The potential for higher costs for specific services in some circumstances. (Some plans charge more than traditional Medicare for a short hospital stay, home health care or medical equipment such as oxygen, for instance.) ... Lack of flexibility. Once someone enrolls in Medicare Advantage, they’re locked in for the year. There are two exceptions: a special disenrollment period from Jan. 1 to Feb. 14 (anyone who leaves during this time must go back to traditional Medicare) and a chance to make changes during open enrollment (shifting to a different plan or going back to traditional Medicare are options at this point).

The article also discusses the implications for Medigap policies if the beneficiary switches enrollment to original Medicare and the premium costs for Part C plans. The article recommends a close look at the drug costs under the plan. The article concludes with a discussion of selecting doctors that participate in the beneficiary's plan. 

Helpful article!  Assign it to your students.

 

October 31, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (1)

Tuesday, October 24, 2017

New Medicare Observation Status Toolkit from Center for Medicare Advocacy!

We have blogged several times about the issues for Medicare beneficiaries who are not admitted to the hospital but instead are on observation status. The Center for Medicare Advocacy (CMA) has released a toolkit for those Medicare beneficiaries.  Here's some information from CMA about their toolkit along with helpful links.

The information in our Toolkit can help beneficiaries, families, advocates and providers understand and respond to an “outpatient” Observation Status designation.  The Toolkit contains our Observation Status InfographicFrequently Asked Questions; A Fact SheetSummary & Stories from our partners in the Observation Coalition; A Sample Notice (the MOON); our Recorded Webinar (slides in the printable .pdf); Beneficiary/Advocate Q&A; and our Self-Help Packet.

The Toolkit can be downloaded in its entirety or browsed online at http://www.medicareadvocacy.org/medicare-hospital-outpatient-observation-status-toolkit.

There's a great infographic explaining the observation status dilemma. You could post it or hand it out to clients. Get permission from CMA to post it on your website in the client info section! Check out the FAQ as well as the self-help packet. In addition to accessing the toolkit online, you can download the toolkit as a pdf, by clicking here.

Full disclosure-I'm a member of the CMA board.

October 24, 2017 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Friday, October 20, 2017

Medicare Advantage 5-Star Ratings Report

CMS recently released a report of the ratings of Medicare Advantage plans, according to an article in Modern Healthcare. Medicare Advantage star ratings show insurers' performance hasn't improved explains that according to the data recently released by CMS:

the number of Medicare Advantage plans that performed well in the CMS' star ratings program dropped slightly from last year. At the same time, the amount of insurers that receive certain ratings hasn't changed significantly in recent years. The CMS said about 44% of the 384 active Medicare Advantage contracts in 2018 that also have Part D prescription drug coverage earned 4 stars or higher for their overall rating. This is a drop from 2017 when about 49% of the 363 active Medicare Advantage plans earned 4 stars or higher. Although the overall number of 4-star or high plans dropped slightly, more beneficiaries will be covered by the highest performing Medicare Advantage plans in 2018, the CMS said. Nearly 73% of Medicare Advantage enrollees are in contracts with 4 or more stars, compared to about 69% of enrollees in such plans last year. 

The story notes that the rankings tend to be pretty static and that those with 5 stars in the past seem to maintain that ranking. "Another consistent trend is that higher performers tend to be companies that have the most experience in Medicare Advantage. Contracts with more than 10 years in a Medicare Advantage program accounted for about 21% of 4.5-star ratings and 31% of 4-star and 3.5-star ratings." The article discusses the factors that go into the 5 star rating system and offers some added information about the performance of Part D plans. The CMS press release is available here.

October 20, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Wednesday, October 18, 2017

Voluntary Stopping Eating & Drinking (VSED) When Capacity Lacking?

You may have read recently about a woman who had an advance directive that addressed artificial nutrition and hydration. The SNF where she lived was hand feeding her, over her husband's objections. The trial court sided with the SNF and the state ombudsman who had argued that "state rules to prevent abuse required the center to offer residents three meals each day and provide help eating, if needed."  Can one provide in her advance directive that she refuses in advance oral fluids and foods at some point in the future? The Kaiser Health News article, Dementia Patient At Center of Spoon-Feeding Controversy Dies, explores the specific case as well as the issue.  The patient, as the title explained, died last week. 

Here's the issue illustrated in this matter.

At issue is whether patients with Alzheimer’s and other progressive diseases can stipulate in advance that they want oral food and liquid stopped at a certain point, hastening death through dehydration. It’s a controversial form of what’s known as VSED — voluntarily stopping eating and drinking — a small but growing practice among some terminally ill patients who want to end their lives. In those cases, people who still have mental capacity can refuse food and water, usually resulting in death within two weeks.  .... “The right to VSED is reasonably well-established, but it’s when a person isn’t competent that’s the issue,” said Paul T. Menzel, a retired bioethicist at Pacific Lutheran University in Tacoma, Wash., who has written extensively on the topic.

So in thinking about a person saying no to food and fluids, "VSED doesn’t require a law or a doctor’s approval. But the question of whether it’s possible for people who can no longer actively consent to the procedure remains ethically and legally unclear. That’s especially true for patients who open their mouths to accept food and fluids...." 

Have you looked at your state's laws to see if there is a position on this?  According to the article, almost 24 states have laws on "assisted feeding" some of which "specifically prohibit withdrawing oral food and fluids. Other states address only artificial feeding or are unclear or silent on the issue [and] ... Idaho — appears to sanction withdrawal of assisted feeding by a health care proxy" according to an expert quoted in the article. However, "Idaho state law also prohibits any form of assisted suicide and requires “comfort care” for patients if artificial nutrition and hydration is withdrawn. It’s not clear whether a request to halt assisted feeding would be honored" said an expert on Idaho's statute on Medical Consent and Natural Death Act.

 

 

October 18, 2017 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Food and Drink, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Sunday, October 15, 2017

Social Security Gives-Medicare Takes It Away?

That's similar to the title of a news story on Kaiser Health News  Social Security Giveth, Medical Costs Taketh Away,  reporting on the amount of Social Security is spent by beneficiaries on out of pocket hospital costs. On Friday SSA announced its 2018 figures, including the COLA increase.  However, Medicare's 2018 premium amounts haven't yet been announced, but speculation is that the premium raises will wipe out the COLA increase. The Washington Post reported Social Security checks to rise 2 percent in 2018, the biggest increase in years reports a 2% increase in Social Security for 2018 and noted that "[h]ealth care is their biggest expense, and it's one of the fastest rising costs in America. Medicare Part B premiums are expected to rise in 2018, eating up much of the Social Security increase for some seniors."  Forbes reported similarly in its article, Gotcha! Social Security Benefits Rising 2% In 2018, But Most Retirees Won't See Extra Cash, "many recipients will find most or all of that increase eaten up by a jump in the Medicare Part B premiums deducted from their monthly Social Security checks...."

The Forbes article explains why beneficiaries won't really come out ahead with the COLA increase.

By law, normal Part B premiums are supposed to cover 25% of Medicare's costs for providing doctor and outpatient services.  But about 70% of Social Security recipients have been protected in the past two years by a “hold harmless” provision which provides no increase in Medicare premiums can reduce a Social Security recipient's net monthly check below what it was in the previous year. (Recipients who are considered “high income” and those who don’t have their premiums deducted from Social Security aren’t protected by this hold harmless provision.) Since retirees got no Social Security increase in 2016 and a measly 0.3% hike in 2017, the 70% are now paying an average of $109 a month, instead of the $134 per month premium that would be needed to cover 25% of costs.

While Medicare Part B premiums for 2018 haven’t yet been announced, they’re expected to remain at around $134----meaning the 70% will see about $25 per person---or $50 per couple---of any Social Security benefits increase consumed by higher Medicare premiums.

With open enrollment starting, expect the 2018 premiums to be announced.

 

October 15, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Social Security | Permalink | Comments (0)

Thursday, October 12, 2017

Robert Matava Elder Abuse Prosecution Act of 2017: Elder Abuse Prevention and Prosecution Act

The Robert Matava Elder Abuse Prosecution Act of 2017, Senate Bill 178, has been sent to the President for signature. Here's the summary of the act:

Elder Abuse Prevention and Prosecution Act

TITLE I--SUPPORTING FEDERAL CASES INVOLVING ELDER JUSTICE

(Sec. 101) This bill establishes requirements for the Department of Justice (DOJ) with respect to investigating and prosecuting elder abuse crimes and enforcing elder abuse laws. Specifically, DOJ must:

  • designate Elder Justice Coordinators in federal judicial districts and at DOJ,
  • implement comprehensive training for Federal Bureau of Investigation agents, and
  • establish a working group to provide policy advice.

The Executive Office for United States Attorneys must operate a resource group to assist prosecutors in pursuing elder abuse cases.

The Federal Trade Commission must designate an Elder Justice Coordinator within its Bureau of Consumer Protection.

TITLE II--IMPROVED DATA COLLECTION AND FEDERAL COORDINATION

(Sec. 201) DOJ must establish best practices for data collection on elder abuse.

(Sec. 202) DOJ must collect and publish data on elder abuse cases and investigations. The Department of Health and Human Services (HHS) must provide for publication data on elder abuse cases referred to adult protective services.

TITLE III--ENHANCED VICTIM ASSISTANCE TO ELDER ABUSE SURVIVORS

(Sec. 301) This section expresses the sense of the Senate that: (1) elder abuse involves exploitation of potentially vulnerable individuals; (2) combatting elder abuse requires support for victims and prevention; and (3) the Senate supports a multipronged approach to prevent elder abuse, protect victims, and prosecute perpetrators of elder abuse crimes.

(Sec. 302) DOJ's Office for Victims of Crime must report to Congress on the nature, extent, and amount of funding under the Victims of Crime Act of 1984 for victims of crime who are elders.

TITLE IV--ROBERT MATAVA ELDER ABUSE PROSECUTION ACT OF 2017

Robert Matava Elder Abuse Prosecution Act of 2017

This bill amends the federal criminal code to expand prohibited telemarketing fraud to include "telemarketing or email marketing" fraud. It expands the definition of telemarketing or email marketing to include measures to induce investment for financial profit, participation in a business opportunity, or commitment to a loan.

A defendant convicted of telemarketing or email marketing fraud that targets or victimizes a person over age 55 is subject to an enhanced criminal penalty and mandatory forfeiture.

The bill adds health care fraud to the list of fraud offenses subject to enhanced penalties.

(Sec. 403) DOJ, in coordination with the Elder Justice Coordinating Council, must provide information, training, and technical assistance to help states and local governments investigate, prosecute, prevent, and mitigate the impact of elder abuse, exploitation, and neglect.

(Sec. 404) It grants congressional consent to states to enter into cooperative agreements or compacts to promote and to enforce elder abuse laws. The State Justice Institute must submit legislative proposals to Congress to facilitate such agreements and compacts.

TITLE V--MISCELLANEOUS

(Sec. 501) This section amends title XX (Block Grants to States for Social Services and Elder Justice) of the Social Security Act to specify that HHS may award adult protective services demonstration grants to the highest courts of states to assess adult guardianship and conservatorship proceedings and to implement necessary changes. The highest court of a state that receives a demonstration grant must collaborate with the state's unit on aging and adult protective services agency.

(Sec. 502) The Government Accountability Office (GAO) must review and report on elder justice programs and initiatives in the federal criminal justice system. The GAO must also report on: (1) federal government efforts to monitor the exploitation of older adults in global drug trafficking schemes and criminal enterprises, the incarceration of exploited older adults who are U.S. citizens in foreign court systems, and the total number of elder abuse cases pending in the United States; and (2) the results of federal government intervention with foreign officials on behalf of U.S. citizens who are elder abuse victims in international criminal enterprises.

(Sec. 503) DOJ must report to Congress on its outreach to state and local law enforcement agencies on the process for collaborating with the federal government to investigate and prosecute interstate and international elder financial exploitation cases.

(Sec. 504) DOJ must publish model power of attorney legislation for the purpose of preventing elder abuse.

(Sec. 505) DOJ must publish best practices for improving guardianship proceedings and model legislation related to guardianship proceedings for the purpose of preventing elder abuse.

Note specifically sections 504 and 505.  The text of the enrolled bill can be found here as a pdf.

Stay tuned....

 

October 12, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations | Permalink | Comments (0)

Tuesday, October 10, 2017

Update on Florida Nursing Homes Post-Irma

A recent story reports on the Florida governor's statement calling on a state Constitution Revision Commission "to include provisions to protect residents of nursing homes and assisted living facilities." Scott Wants Nursing Home Rules In Constitution  reports that the Florida Governor is calling on the Commission "to consider adding 'permanent measures to put patient safety first.'" The constitutional amendments will be voted on in the November, 2018 election.

Meanwhile, the nursing home in Hollywood Florida where the deaths occurred filed suit challenging the state's moratorium on admissions as well as suspension from the state's Medicaid program. Broward Nursing Home Expands Lawsuit Against State  explains that the facility is seeking an injunction.

Stay tuned, there's a hearing on the facility's motion before the end of the month.

October 10, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, October 8, 2017

Emergency Readiness of SNFs

Justice in Aging has released a new issue brief focuses on the emergency readiness of nursing homes. Why Many Nursing Facilities Are Not Ready For Emergency Situations explains the situation in the executive summary: 

Nursing facility residents can be particularly at risk during natural disasters, as has been demonstrated yet again during Hurricanes Harvey, Irma, and Marie. The hurricanes resulted in death and injury in nursing facilities across the region, including twelve deaths in one Florida facility.

These deaths and injuries, and the desire to prevent harm in the future, have directed renewed attention on emergency preparedness. This issue brief discusses existing federal and state law, and makes recommendations to address gaps in current law.

Federal regulations on nursing facility emergency preparedness were issued in September 2016, and are scheduled for full implementation in November 2017. The regulations address five primary areas: emergency plans, facility procedures, communication plans, training and testing, and emergency power systems.

Unfortunately, these new regulations are inadequate to protect residents, in part because some of the regulatory standards are excessively vague, and in part because the regulations only govern nursing facilities and cannot mandate the broader coordination that would be advisable for community-wide emergency preparedness. Federal, state, and local governments should take additional steps to ensure adequate preparation for the natural disasters that inevitably will envelop nursing facilities and other health care providers in years to come.

The issue brief offers 7 recommendations including requiring  (1) emergency generators, (2) prior  coordination between government, healthcare providers and nursing homes, (3) arrangements for emergency evacuations, (4) local governments to keep the pertinent information "on an ongoing, community-wide basis", (5) governments or providers to create resources designed to help in drafting the emergency plan, (6) governments to mandate outside review of the facilities' emergency plans and (7) federal surveyors to impose appropriate sanctions for those facilities that don't comply with the emergency plan.

 

October 8, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Statutes/Regulations | Permalink | Comments (0)

Friday, October 6, 2017

Guns, Aging & Suicide

The last few weeks have been very tough, haven't they?  As have the last few months, and perhaps even the last few years.  

Many seem to be trying to understand why a 64-year-old "retired" man in the U.S. would assemble an arsenal of weaponry, unleash it on a crowd of innocents enjoying a last few weekend hours of music, and then take his own life.  While it is, on a comparative scale, unusual for a 60+ individual to be involved in a mass shooting, "older men" apparently have a comparatively high suicide-by-gun rate.  While there may be no way to understand the motivation for the most recent murders, there are still reasons to ask whether aging and deteriorating cognitive health can be factors in gun-related deaths.  

In the search for some understanding I read Leah Libresco's opinion piece in the Washington Post:  "I used to think gun control was the answer.  My research told me otherwise." 

In that article, her research on the annual 33,000+ gun deaths in America, led her to several interesting observations and conclusions.  She writes, for example, that the statistics showed her:

  • "Two-thirds of gun deaths in the United States every year are suicides."
  • "Older men, who make up the largest share of gun suicides, need better access to people who could care for them and get help."

Libresco's essay sent me in turn to a feature story, part of a FiveThirtyEight series analyzing annual gun deaths, on "Surviving Suicide in Wyoming," by Anna Maria Barry-Jester.  She writes in greater detail about warning signs of deteriorating mental health, especially among older men: isolation, sometimes self-imposed; sleeplessness; depression; anxiety; and unresolved physical health problems. 

As these articles point out, limiting access to guns is appropriate for individuals with suicidal thoughts. That's different than "gun control laws."  And while guns may too often be the means to effectuate "rash desperate decisions," these researchers also suggest the greatest need is for better public awareness and response to warning signs, and for improved diagnosis and access to effective care, including social, mental and physical health care.    

October 6, 2017 in Advance Directives/End-of-Life, Crimes, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Science, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Thursday, October 5, 2017

Medicare Hospice Compare Now Available

CMS has announced the availability of Hospice Compare and it is now live! The website is searchable either by the name of the agency or by zip code.  Not only does the website provide general information about hospice, the website provides a consumer checklist, information about Medicare's coverage of hospice care and other useful information. The site allows for comparisons of hospice agencies based on their quality of care.  Check it out!

October 5, 2017 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Monday, October 2, 2017

"Probable Cause" Prevents Son-in-Law/Agent from Suing for Malicious Prosecution in Elder Fraud Case

The case of Fisher v. King, in federal court in Pennsylvania, strikes me as unusual on several grounds.  It is a civil rights case, alleging malicious prosecution, arising from an investigation of transferred funds from elderly parents, one of whom was in a nursing home, diagnosed with "dementia and frequent confusion."  

Son-in-law John Fisher was financial advisor for his wife's parents, both of whom were in their 80s. He and his wife were charged with "theft by deception, criminal conspiracy, securing execution of documents by deception and deceptive/fraudulent business practices" by Pennsylvania criminal authorities, following an investigation of circumstances under which Fisher's mother-in-law and her husband transferred almost $700k in funds to an account allegedly formed by Fisher with his wife and sister-in-law as the only named account owners.  A key allegation was that at the time of the transfer, the father-in-law was in a locked dementia unit, where he allegedly signed a letter authorizing the transfer, prepared by Fisher, but presented to him by his wife, Fisher's mother-in-law.  The mother-in-law later challenged the transaction as contrary to her understanding and intention.

Son-in-law Fisher, his wife, and his wife's sister were all charged with the fraud counts.  They initially raised as defense that the transactions were part of the mother's larger financial plan, including a gift by the mother to her daughters, but not to her son, their brother.  

As described in court documents, shortly before trial on the criminal charges the two sisters apparently agreed to return the funds to their mother, and, with the "aggrieved party" thus made whole, Fisher and his wife entered into a Non-Trial Disposition that resulted in dismissed of all criminal charges. At that point, you might think that everyone in the troubled family would wipe their brows, say "phew," and head back to their respective homes.

Not so fast.  Fisher then sued the Assistant District Attorney and the investigating police officer in federal court alleging violations under Section 1983 -- malicious prosecution and abuse of process. 

Continue reading

October 2, 2017 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, October 1, 2017

The Black, White & Gray of Consent to Sexual Relations in Long-Term Care

Eagle Crest, a 126-bed skilled nursing facility in California, once known as Carmichael Care & Rehabilitation Center, is "voluntarily" closing its doors. A major reason for parent corporation Genesis HealthCare's  decision appears to be an incident of sexual contact between two aged residents at the facility in February, 2017.  Not a violent contact and apparently not one involving physical or mental injury.  But clothing was removed and fluids were later documented.  Now residents are being transferred and more than 70 employees will reportedly be laid off. 

As one of the two residents had Alzheimer's disease, and thereby was deemed unable to consent to sexual relations, the facility "self-reported" the contact as possible abuse to appropriate state authorities.   A criminal investigation found no grounds for prosecution.  A California Department of Public Health report, however, made the recommendation to federal authorities last summer to "drop the facility from its medicare provider rolls, a drastic action that strips a nursing home of its critical government funding," according to news reports.  The actual closure action was made voluntarily by Genesis.

Those are some of the black and white facts reported by the Sacramento Bee, which has published a series of news articles tracking this facility for many months. The "gray" facts are more complicated, and raise questions at the heart of any LTC operation:

  • Is it possible the state overreacted and misconstrued a "quasi-consensual" contact between a "lonely man and a confused woman"? 
  • How far must a LTC provider go to prevent intimate contact between residents?
  • After one report of sexual contact between residents, does that mean one or both residents must be treated as a risk that requires special procedures to prevent -- or at least reduce the likelihood -- of them being involved in future sexual contact?
  • How does a long-term care facility achieve a restraint-free environment -- a federally sanctioned goal -- while also charged with protecting ambulatory residents from intimate contact?  
  • Is it possible for residents (and their family members or other health care agents?) to release a facility from liability arising from "un-consented" sexual relations among residents?

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October 1, 2017 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, September 28, 2017

"CHRONIC" - Senate Bill 870 Passes Senate With Bi-Partisan Support - Is It Significant?

On Tuesday, September 26, 2017, at the same time that there was much sound and fury, but no vote, on the Graham-Cassidy Senate effort to repeal Obamacare, the U.S. Senate quietly approved on a voice vote Senate Bill 870, titled "Creating High-Quality Results and Outcomes Necessary to Improve Chronic Care Act of 2017"or "CHRONIC Care" for short.  

The vote sends the bill on to the House for any next step of action. In press releases after the vote, sponsors welcomed Senate passage as a sign of bipartisan support for "strengthening and improving health outcomes for Medicare beneficiaries living with chronic conditions," noting:  

“This bill marks an important step towards updating and strengthening Medicare’s guarantee of comprehensive health benefits for seniors,” said [Oregon's Senator Ron Wyden,] the ranking Democrat on the Senate Finance Committee. “Medicare policy cannot stand idly by while the needs of people in the program shift to managing multiple costly chronic diseases,” Wyden said. “This bill provides new options and tools for seniors and their doctors to coordinate care and makes it less burdensome to stay healthy.”

The bill that passed the Senate on Tuesday was co-sponsored by Senate Finance Committee Chairman Orrin Hatch (R-Utah), as well as Sens. Johnny Isakson (R-Ga.) and Mark Warner (D-Va.)

Initial review of the modestly ambitious bill shows that if passed in full by the House, the legislation would extend by 2 years the "Independence at Home Demonstration program," now in its 5th year, with funding otherwise set to run out at the end of September.  Additional provisions address "telehealth" services and direct studies or accounting reports on Medicare Advantage plans.  

The Independence at Home Demonstration program seems worthy of additional operation and tracking, as at least on paper it trends towards what most people seem to want, i.e., better health care access while still at home, rather than waiting for facility-based services.  For more on preliminary outcomes from the Demonstration program, see "Corrected Performance Results" from Year 2, released in January 2017.  

On the other hand, it is difficult to resist the irony that a great deal of work seemed to go into crafting the acronym, "CHRONIC," which also happens to be the street name for "very high-quality marijuana."    

 My special thanks to my newest Dickinson Law colleague, Professor Matthew Lawrence, who comes to us with fabulous experience in health care law, for helping identify this active piece of legislation.  

September 28, 2017 in Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Social Security | Permalink | Comments (0)

Wednesday, September 27, 2017

It's All About Identity Theft These Days

This is not an elder law specific topic so if that doesn't interest you, stop reading now (we have plenty of elder law specific posts in the archives). It seems like every week (if not more often) we read about a data breach. The one gathering all the headlines right now is the Equifax breach, which I'm sure you all have heard about (unless you are one of the ones without power Post-Irma).  Having been a victim of ID theft and the Equifax breach, I'm a little wound up about these issues so forgive me if I get a little too "enthused" discussing this. Within 11 minutes today I got two agency emails warning me about ID theft. Social Security sent out a note about Protecting Your Social Security. Here are some suggestions from SSA:

  • Open your personal my Social Security account....
  • If you already have a my Social Security account, but haven’t signed in lately, take a moment to login to easily take advantage of our second method to identify you each time you log in. This is in addition to our first layer of security, a username and password....
  • If you know your Social Security information has been compromised, and if you don’t want to do business with Social Security online, you can use our Block Electronic Access You can block any automated telephone and electronic access to your Social Security record...

The second email I got was a consumer alert from NAIC.  Identity Theft: Protect Yourself in wake of breaches, hacks and cyber stalkers explains

Big data is big business. But it can also lead to bigger headaches when large-scale breaches expose personal information. Large companies including insurers and credit bureaus have been the victims of cyber thieves who accessed private customer information. Most recently, the Equifax breach of could affect 143 million Americans.

Identity theft occurs when a person uses your personal information to commit fraud or unlawful activity. Using your social security number or date of birth, someone may open new credit card or bank account in your name, and even take out a loan using your personal information. Affected consumers can help protect themselves with identity theft insurance—or by using safeguards provided by the impacted company. The National Association of Insurance Commissioners (NAIC) offers these consumer protection tips.

The tips include what not to carry in your wallet, what to do if your identity has been stolen,  not to proactively protect yourself against identity theft and the pros and cons of purchasing identity theft insurance.

I'm just saying now... this isn't going to be the last time I write you about this.  Hopefully none of you will be in my boat.  Safe travels through cyber space.

September 27, 2017 in Consumer Information, Crimes, Current Affairs, Federal Cases, Federal Statutes/Regulations, Other, Web/Tech | Permalink | Comments (0)

Tuesday, September 26, 2017

Nursing Home Abuse: Reporting to Law Enforcement

Check out this updated policy brief, Policy Brief: Requirements for Reporting to Law Enforcement When There is a Suspicion of a Crime Against a Nursing Home Resident.  The Long Term Care Community Coalition  (as an aside, take a look at their cool url) released this updated brief with information about changes and 2017 updates

2017 Updates:
1. The potential fines for violations of the law are subject to adjustment for inflation. The fines indicated below are current as of September 2017.
2. New CMS guidelines for these (and other) requirements are in effect as of November 28,
2017. A summary of the guidelines for reporting can be found at the end of this brief. The
full federal Guidance can be found on the CMS website:

https://www.cms.gov/Medicare/Provider-Enrollment-and-
Certification/GuidanceforLawsAndRegulations/Downloads/Advance-Appendix-PP-Including-Phase-2-.pdf.

The overview explains that

The law broadens and strengthens the requirements for crime reporting in all long term care
facilities (including Nursing Facilities, Skilled Nursing Facilities, LTC Hospices, and Intermediate Care Facilities ...) that receive $10,000 or more in federal funds per year. The facility must inform the individuals covered under the law - its employees, owners,
operators, managers, agents, and contractors - of their duty to report any "reasonable
suspicion" of a crime (as defined by local law) committed against a resident of the facility. After forming the suspicion, covered individuals have twenty-four hours to report the crime to both the State Survey Agency and to a local law enforcement agency. If the suspected crime resulted in physical harm to the resident, the report must be made within two hours.

The brief explains the policy requirements and offers recommendations for consumers, state agency folks and long term care facilities. There is also a summary of the regs as well as definitions of commonly used words.

The brief can be downloaded as a pdf here.

September 26, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases | Permalink | Comments (0)