Sunday, June 26, 2016

Medicare Appeals

The GAO issued a new report on improving the Medicare Appeals process for original Medicare.  Medicare Fee-For-Service: Opportunities Remain to Improve Appeals Process  was released on June 9, 2016.

Here is what the GAO found:

The appeals process for Medicare fee-for-service (FFS) claims consists of four administrative levels of review within the Department of Health and Human Services (HHS), and a fifth level in which appeals are reviewed by federal courts. Appeals are generally reviewed by each level sequentially, as appellants may appeal a decision to the next level depending on the prior outcome. Under the administrative process, separate appeals bodies review appeals and issue decisions under time limits established by law, which can vary by level. From fiscal years 2010 and 2014, the total number of filed appeals at Levels 1 through 4 of Medicare's FFS appeals process increased significantly but varied by level. Level 3 experienced the largest rate of increase in appeals—from 41,733 to 432,534 appeals (936 percent)—during this period. A significant portion of the increase was driven by appeals of hospital and other inpatient stays, which increased from 12,938 to 275,791 appeals (over 2,000 percent) at Level 3. HHS attributed the growth in appeals to its increased program integrity efforts and a greater propensity of providers to appeal claims, among other things. GAO also found that the number of appeal decisions issued after statutory time frames generally increased during this time, with the largest increase in and largest proportion of late decisions occurring at appeal Levels 3 and 4. For example, in fiscal year 2014, 96 percent of Level 3 decisions were issued after the general 90-day statutory time frame for Level 3.

The Centers for Medicare & Medicaid Services (CMS) and two other components within HHS that are part of the Medicare appeals process use data collected in three appeal data systems—such as the date when the appeal was filed, the type of service or claim appealed, and the length of time taken to issue appeal decisions—to monitor the Medicare appeals process. However, these systems do not collect other data that HHS agencies could use to monitor important appeal trends, such as information related to the reasons for Level 3 decisions and the actual amount of Medicare reimbursement at issue. GAO also found variation in how appeals bodies record decisions across the three systems, including the use of different categories to track the type of Medicare service at issue in the appeal. Absent more complete and consistent appeals data, HHS's ability to monitor emerging trends in appeals is limited and is inconsistent with federal internal control standards that require agencies to run and control agency operations using relevant, reliable, and timely information.

HHS agencies have taken several actions aimed at reducing the total number of Medicare appeals filed and the current appeals backlog. For example, in 2014, CMS agreed to pay a portion of the payable amount for certain denied hospital claims on the condition that pending appeals associated with those claims were withdrawn and rights to future appeals of them waived. However, despite this and other actions taken by HHS agencies, the Medicare appeals backlog continues to grow at a rate that outpaces the adjudication process and will likely persist. Further, HHS efforts do not address inefficiencies regarding the way appeals of certain repetitious claims—such as claims for monthly oxygen equipment rentals—are adjudicated, which is inconsistent with federal internal control standards. Under the current process, if the initial claim is reversed in favor of the appellant, the decision generally cannot be applied to the other related claims. As a result, more appeals must go through the appeals process.

The GAO recommended:

To reduce the number of Medicare appeals and to strengthen oversight of the Medicare FFS appeals process, we recommend that the Secretary of Health and Human Services take the following four actions:

1. Direct CMS, OMHA, or DAB to modify the various Medicare appeals data systems to

a. collect information on the reasons for appeal decisions at Level 3;

b. capture the amount, or an estimate, of Medicare allowed charges at stake in appeals in MAS and MODACTS; and

c. collect consistent data across systems, including appeal categories and appeal decisions across MAS and MODACTS.

2. Implement a more efficient way to adjudicate certain repetitive claims, such as by permitting appeals bodies to reopen and resolve appeals.

 A pdf of the full report is available here.

 

June 26, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Friday, June 24, 2016

When "Good Enough" Is Not Good Enough At All

Our friend, GW Law Professor Naomi Cahn, has shared with us a recent essay by her long-time friend, Cindy Schweich Handler, who writes of the death of her mother-in-law.  This essay presents an important counterpoint to the lawsuit that Becky Morgan reports on today for our Blog, about a California lawsuit that attempts to challenge California's physician-assisted suicide law.

Ms. Handler writes with sensitivity -- and disagreement -- about the decision, at age 86, of her mother-in-law to end her own life:

Ellen is dying the way she lived: actively, with a lot of input. At 86, like so many of her contemporaries, she suffers from multiple maladies: a slow-growing leukemia called CLL; a recent mini-stroke; spinal stenosis that pains her legs and numbs her hands; recurring bouts of intestinal distress that leave her dehydrated and housebound. The ailments are awful and life-disrupting, but none of them are finishing her off. She doesn’t want to acclimate herself to wheelchairs, live-in aides and other affronts to her independent self-image. What she wants is to not treat her symptoms, to voluntarily stop eating and drinking, and to die.

 

While her pronouncement that she’s “had a good run” has left Harry and me sidelined with shock, our eldest son, Ted, understands....

 

Ted finds Ellen an excellent palliative-care doctor near her New Jersey retirement community who consults with the two of them for hours, making sure the patient isn’t suffering from a temporary, treatable depression. The doctor conference-calls with Harry and his two siblings, and they affirm that they all want what she wants. The Do Not Resuscitate and more detailed Physician Orders for Life-Sustaining Treatment forms are filled out and displayed prominently on her dining room table. Jennifer, who has experience in these situations, is available, and she can be at Ellen’s side 24/7. Everything is in place.

 

Then, a complication: Ellen’s independent living community prohibits outside aides from working there. For my mother-in-law to die in a hotel or apartment rented for the occasion is unthinkable to me. Harry and I are empty-nesters, with a third-floor suite that’s quiet and private. It makes sense that she should die in the guest room above our bedroom.

Although Ms. Handler and her husband provide Ellen her last place of hospice and palliative care, Ms. Handler doesn't embrace Ellen's plan:

What I don’t understand, why I have such a powerful case of cognitive dissonance, is her timing. Her retirement-home friends always remark on how she holds court in the dining hall after meals. Neat stacks of the Economist top her end table. She goes on field trips to museums, sees movies before I do. Surely she wants to stick around to see more graduations, or at least to find out what happens with the whole Donald Trump thing.

She suggests Ellen has more "good-enough years" left in her.   But, as the essay explains, good enough is not good enough for a woman of Ellen's steely strength and approach to life.

For the full account, I recommend "I didn't like it, but this was the death she chose," from the Washington Post. Thank you, Naomi, for sharing this timely essay, and to  Ms. Handler for her own emotional strength in writing it.  The comments appearing on the Washington Post website are also important reading. 

June 24, 2016 in Current Affairs, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0)

Thursday, June 23, 2016

Challenge to California's Aid-in-Dying Law

I don't think we should be surprised to learn that a lawsuit has been filed, challenging California's aid-in-dying law that became effective earlier this month. The LA Times reported on June 9, 2016 that a suit had been filed.  Opponents Sue to Overturn California's New Aid-in-Dying Law explains that two organizations and some individual doctors filed the suit and claim that the law is unconstitutional,"argu[ing] that California’s law is a civil rights violation, stripping terminally ill patients of protections afforded to other Californians." The article notes that the judge assigned to the case denied a TRO but a hearing on the plaintiffs' motion for a preliminary injunction will be held in late June. 

 

June 23, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care | Permalink | Comments (0)

Wednesday, June 22, 2016

Social Security & Medicare Trustees 2016 Reports Released

It's that time of the year! The Social Security Trustees and the Medicare Trustees released their 2016 reports.  There is always a lot of information in these reports, but what everyone wants to know is when these programs are "running out" of money. According to the Social Security Trustees 2016 report, the SSDI and Retirement funds (combined) are "good" through 2034, although individually the SSDI fund isn't as robust, with its solvency at risk in 2023. 

Here is an excerpt from the summary:

The Bipartisan Budget Act of 2015 was projected to postpone the depletion of Social Security Disability Insurance (DI) Trust Fund by six years, to 2022 from 2016, largely by temporarily reallocating a portion of the payroll tax rate from the Old Age and Survivors Insurance (OASI) Trust Fund to the DI Trust Fund. The effect of updated programmatic, demographic and economic data extends the DI Trust Fund reserve depletion date by an additional year, to the third quarter of 2023, in this year's report. While legislation is needed to address all of Social Security's financial imbalances, the need remains most pressing with respect to the program's disability insurance component.

The OASI and DI trust funds are by law separate entities. However, to summarize overall Social Security finances, the Trustees have traditionally emphasized the financial status of the hypothetical combined trust funds for OASI and DI. The combined funds satisfy the Trustees' test of short-range (ten-year) close actuarial balance. The Trustees project that the combined fund asset reserves at the beginning of each year will exceed that year's projected cost through 2028. However, the funds fail the test of long-range close actuarial balance.

The Trustees project that the combined trust funds will be depleted in 2034, the same year projected in last year's report....

As far as Medicare, the Trustees report solvency through 2028. Here are two excerpts from the Trustees Report (in Section II.A.)

Short-Range Results

The estimated depletion date for the HI trust fund is 2028, 2 years earlier than in last year’s report. As in past years, the Trustees have determined that the fund is not adequately financed over the next 10 years. HI tax income and expenditures are projected to be lower than last year’s estimates, mostly due to lower CPI assumptions. The impact on expenditures is mitigated by lower productivity increases.

Looking at the separate programs Part A (HI) and Part B (SMI) the picture for SMI is a bit better

The SMI trust fund is adequately financed over the next 10 years and beyond because premium income and general revenue income for Parts B and D are reset each year to cover expected costs and ensure a reserve for Part B contingencies. A hold-harmless provision restricts Part B premium increases for most beneficiaries in 2016; however, the Bipartisan Budget Act of 2015 requires a transfer of funds from the general fund to cover the premium income that is lost in 2016 as a result of the provision. In 2017 there may be a substantial increase in the Part B premium rate for some beneficiaries. (See sections II.F and III.C for further details.) ...

 

June 22, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Retirement, Social Security | Permalink | Comments (1)

Good News on the Alzheimer's Front?

Two recent articles made me think that progress is being made in the fight against Alzheimer's.  First I ran into an article in the Chicago Tribune on May 25, 2016 from a Harvard Health Blog postDecline in Dementia Rate Offers 'Cautious Hope' details a recent report from the New England Journal of Medicine (NEJM), Incidence of Dementia over Three Decades in the Framingham Heart Study which we blogged about on February 23, 2016. After discussing the study and its results, the article turns to the question of whether dementia can be prevented:

As the Alzheimer's Association predicts, the numbers of people with dementia may ultimately increase simply because people are living longer. At the same time, the Framingham researchers offer "cautious hope that some cases of dementia may be prevented or at least delayed."

The Framingham results bolster the notion that what's good for the heart is good for the head. If you're pursuing a heart-healthy lifestyle -- following a Mediterranean-style diet, getting the equivalent of 150 minutes of moderate exercise a week, managing your stress, and engaging with friends and family -- you're likely lowering your risk of dementia in the bargain, too.

The other article also ran on May 25, 2016, this one in the New York Times.  It posits an intriguing question: Could Alzheimer’s Stem From Infections? It Makes Sense, Experts SayThe article references a recent study by Harvard researchers,  Amyloid-β peptide protects against microbial infection in mouse and worm models of Alzheimer’s disease the results of which was published in Science Translational Medicine. The abstract is available here but the full article requires registration.

Here is how the study results are explained in the Times article

The Harvard researchers report a scenario seemingly out of science fiction. A virus, fungus or bacterium gets into the brain, passing through a membrane — the blood-brain barrier — that becomes leaky as people age. The brain’s defense system rushes in to stop the invader by making a sticky cage out of proteins, called beta amyloid. The microbe, like a fly in a spider web, becomes trapped in the cage and dies. What is left behind is the cage — a plaque that is the hallmark of Alzheimer’s.

The article provides a fascinating recap of how the researchers got to this point and notes that "[r]ecent data suggests that the incidence of dementia is decreasing. It could be because of better control of blood pressure and cholesterol levels, staving off ministrokes that can cause dementia. But could a decline in infections also be part of the picture?" The article concludes describing the next steps in this research.

So, good news on the Alzheimer's front? You decide. (I vote yes).

June 22, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0)

Tuesday, June 21, 2016

Estate Planning Lessons from the Redstone Saga?

We've previously blogged about the happenings in the case and life of Sumner Redstone. Although one lawsuit was dismissed, it doesn't appear that is the end of the matter. The New York Times ran an article on June 2, 2016, In Sumner Redstone Affair, His Decline Upends Estate Planning. Although the focus of the story is Mr. Redstone's situation, the story notes that this happens perhaps more than we think.

As Americans live longer and more families are forced to cope with common late-in-life issues like dementia, the problem is getting worse. “It’s a huge issue nationally as the elderly population grows and their minds start to falter,” [one attorney interviewed for the story] said. “I’ve seen charities coming after people for multiple gifts: Sometimes these donors don’t remember that they already gave the previous week. Romantic partners, caregivers who take advantage of the elderly — we’re seeing it all.”

Elderly people may be especially susceptible to the influence of people who happen to be around them during their waning days.

Professor David English (full disclosure, co-author and friend) "a professor of trusts and estates at the University of Missouri School of Law and former chairman of the American Bar Association’s commission on law and aging" said

This is an issue for lots of people of even modest wealth... [and] the most common approach is the creation of a trust, either revocable (which means it can later be changed) or irrevocable, that anticipates such a problem and defines what the creator of the trust means by incapacity. This could be a much less rigorous standard than is typically applied by courts... The document should define the meaning of incapacity and, more importantly, indicate who determines incapacity....

The article goes on to examine the importance of trusts that are carefully well-drafted to address issues such as those faced in this case.  However, "sometimes no amount of legal advice can save people from an unwillingness to face their own mortality and cede control while still in full control of their faculties."

June 21, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management | Permalink | Comments (0)

Thursday, June 16, 2016

Caring for the Caregivers

Georgia Public Broadcasting ran a story recently on caring for family caregivers.  Who Cares for Family Caregivers ran on May 23, 2016. The story explains an institute in Savannah, Ga. that is focused on helping the family caregivers, including training.  The story focuses on several family caregiver's stories and notes that there is a bill pending "before the U.S. Senate would offer some help to caregivers. Under the measure they would qualify for up to $3,000 in tax credits."  A video of the story is also available with the transcript.

The website for the institute featured in the story offers a caregiver stress level self-assessment quiz and a caregiver questionnaire for those looking for training as well as other caregiver resources.

June 16, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care | Permalink | Comments (0)

Wednesday, June 15, 2016

Elder Tech: A Report to the President

We've blogged on a number of occasions about the "elder tech revolution" and the technology competency of elders.  We're not the only ones watching this issue. In fact, the President's Council of Advisors on Science and Technology issued a report to the President in March of this year. Report to the President Independence, Technology and Connection in Older Age is a detailed look at various issues and technologies.  The executive summary sets the stage

The U.S. population is getting older, and Americans are living longer, on average, than they ever have before. As they age, people are healthier and more active than the generations before them and have fewer functional limitations such as difficulty walking or blindness. Studies show that people are happier on average as they advance into their later decades and enjoy high levels of accumulated knowledge and experience.

Getting older is a time of social, emotional, mental, and physical change. Retirement might change how a person interacts socially every day, affecting a person’s mood and well-being. Cognitive aging—the normal process of cognitive change as a person gets older—can begin, or a permanent change in physical function may arise. Technology offers a path for people who are navigating these changes potentially to prevent or minimize the risks associated with them and to enhance people’s ability to live their lives fully. We, the President’s Council of Advisors on Science and Technology (PCAST), sought to identify technologies and policies that will maximize the independence, productivity, and engagement of Americans in their later years.

 

The Committee focused on 4 areas of aging: physical and cognitive changes, hearing loss and lack of social interaction. The report contains "cross-cutting recommendations" as well as area-specific recommendations. The cross-cutting recommendations include federal support and coordination, widespread internet access, adoption of monitoring technology, and encouraging research to develop more innovation. There are 12 area-specific recommendations.

The blog post about the report is available here.

 

June 15, 2016 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, Web/Tech | Permalink | Comments (0)

Nebraska Mandates Protection for Health Care Whistleblowers

In a recent McKnight's News column, Registered Nurse Pam McKnally wrote an interesting and candid account of "What It's Like to Be a Nurse Whistleblower."  Her experiences with retaliation  -- indeed bullying-- after she complied with laws requiring to her report observations of improper use of narcotics in the workplace led her and others to advocate for changes in the law.

In April 2016, in response to the experiences of McKnally and others, Nebraska enacted changes to state law, prohibiting retaliation against whistleblowers and mandating confidentiality for the identities of anyone making reports of violations by "credentialed" health care providers. Nebraska Legislative Bill 750, amending Nebraska's law that governs a broad range of health care providers, specifies:

An individual or a business credentialed pursuant to the Uniform Credentialing Act shall not discriminate or retaliate against any person who has initiated or participated in the making of a report under the act to the department of [health and human services].  Such person may maintain an action for any type of relief, including injunctive and declaratory relief, permitted by law. 

Further, the law now provides that "The identity of any person making such a report [of suspected violations] or providing information leading to the making of a report shall be confidential" and further, "The identify of any person making a report, providing information leading to the making of a report, or otherwise providing information to the department, a board, or the Attorney General included in such reports, complaints or investigational records shall be confidential whether or not the record of the investigation becomes a public record."

Whether the changes to Nebraska law, especially in the absence of a specific statutory sanction for retaliation or breach of confidentiality, will be effective to address the backlash experienced by McNally will bear monitoring.  She cautions:

I resigned, as my work life was intolerable, and it was clear that I was about to get fired. The EOC investigated my claims. The costs in employee hours and attorney fees, plus fines for violations can be astronomical. Had the situation been handled differently by the Human Resource department, the outcome may have been much different.

 

It is time for employers to stop blaming and discrediting professionals who simply follow the law and advocate for themselves and their patients....

 

When nurses are happy they work hard. They are loyal and seek out constructive ways to help their organization deal with conflict. In long-term care, Medicare and Medicaid cuts mean money needs to be saved now more than ever. Keeping a business viable includes mitigating the need for attorneys and dealing with nurse turnover.

June 15, 2016 in Crimes, Current Affairs, Discrimination, Ethical Issues, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, June 9, 2016

Old and Homeless

Sometimes we run into stories that really really are sad.  This story in the New York Times is sad. Imagine being old and homeless, whether recently homeless or homeless for a long time. Think about the struggles one has in being homeless. Compound those struggles with the challenges faced by someone who has mobility issues or physical problems identified with being older. Old and on the Street: The Graying of America’s Homeless is an in-depth story that ran on May 31, 2016 and notes [t]he emergence of an older homeless population is creating daunting challenges for social service agencies and governments already struggling to fight poverty.

They lean unsteadily on canes and walkers, or roll along the sidewalks of Skid Row here in beat-up wheelchairs, past soiled sleeping bags, swaying tents and piles of garbage. They wander the streets in tattered winter coats, even in the warmth of spring. They worry about the illnesses of age and how they will approach death without the help of children who long ago drifted from their lives.

Homelessness is not just an issue for elders, but it is an issue that is growing since all of us age. "The homeless in America are getting old... There were 306,000 people over 50 living on the streets in 2014, the most recent data available, a 20 percent jump since 2007, according to the Department of Housing and Urban Development. They now make up 31 percent of the nation’s homeless population."

There are the "recently" homeless some of whom lost jobs and others who can't afford a home on fixed-income, and then there are the long-term homeless.

Many older homeless people have been on the streets for almost a generation, analysts say, a legacy of the recessions of the late 1970s and early 1980s, federal housing cutbacks and an epidemic of crack cocaine. They bring with them a complicated history that may include a journey from prison to mental health clinic to rehabilitation center and back to the sidewalks.

The article notes the incidences of homelessness is somewhat geographic and is rising in the larger metropolitan areas.  The article features interviews with several  elders in California who are homeless.

How do cities respond to the challenges of individuals who are homeless, and especially those elders who are homeless? "The challenges faced ... have forced advocates for the homeless and government agencies to reconsider what kinds of services they need: It is not just a meal, a roof and rehabilitation anymore." 

Assign this article to your students and ask them to create a plan for their city to provide services. It should be an interesting class discussion.

June 9, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Wednesday, June 8, 2016

Conversion of Senior Living Operations from Non-Profit to For-Profit - What are the Limits?

A recent New York Times article sheds light on a frequent topic I've encountered in my own research on the convergence of elder law, contract law, and nonprofit organizations law:  when will a nonprofit nursing home or similar senior living operation be "allowed" to convert or sell-off to a for-profit operation?  And what if the "real" plan is to convert to an entirely new type of for-profit operation? 

The potential for conversion appears to be the heart of a dispute over two nonprofit nursing homes in Manhattan, where State and City authorities are seeking to prevent their purchase by a for-profit company known as Allure Group.  From the New York Times:

Citing misrepresentations and broken promises, the New York State attorney general’s office is seeking to prevent the purchase of two nursing centers by a company that was involved in transactions that put a Manhattan nursing home in the hands of luxury condominium developers....

 

“Allure made clear and repeated promises to continue the operation of two nursing homes for the benefit of a vulnerable population — promises that proved to be false,” said Matt Mittenthal, a spokesman for the attorney general, referring to Rivington House and a nursing home bought by Allure in the Bedford-Stuyvesant section of Brooklyn, which were closed within a year of a court petition’s being filed. “Until we conclude our investigation, we will object to Allure buying additional nursing homes.”

 

In New York, any nonprofit seeking to sell its assets must petition a state court for approval; the attorney general reviews all such requests and can object if there are grounds to do so. The court has the final say....

For more, read New York Attorney General Seeks to Halt Sale of 2 Nursing Homes Amid Inquiries.

June 8, 2016 in Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Will President Obama be Remembered as a Leader in Fighting Healthcare Fraud?

The Office of Inspector General issues regular reports to Congress, and the most recent report indicates that for the period of October 1, 2016 to March 31, 2016,  the total amount of expected recoveries arising from allegations of healthcare fraud was $2.77 billion.  That number is "up" by a billion dollars over the first half of fiscal year 2016.  

Here's a link to the most recent OIG report and here's a link to a recent article about the numbers in McKnight's Long Term Care News

 

June 8, 2016 in Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Statistics | Permalink | Comments (0)

Tuesday, June 7, 2016

Health Care Debt and Debt Collectors: "Is This How My Life Will End?"

John Oliver, in his typically over-the-top, but still informative manner, focuses on the industry of debt collection and how it can be especially troublesome for older adults.  Indeed, when I was running an Elder Protection Clinic for Dickinson Law, a significant percentage of our clients were struggling with "old" debts, often connected to health care costs, and were dealing with aggressive attempts to recover what has come to be known as  "zombie debt."  One woman interviewed about $80k in debt arising out of denial for insurance coverage for her elderly husband's hospitalization for breathing problems, describes her fear and frustration after a lifetime of working and saving.  She asks, "Is this how my life is going to end?"

 

 

Our thanks to Karen Miller, Esq., in Florida, for sending this link.  

June 7, 2016 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Retirement, Statistics | Permalink | Comments (0)

Florida Health Care Agency Revokes Nursing Home License at CCRC

We've reported earlier, including here and here, about recent financial and management issues at a Tampa, Florida continuing care retirement community that operates under the name of University Village. The latest event is the May 31, 2016 order of an administrative law judge that would uphold the decision of the Florida Agency for Health Care Administration to  revoke the license for operation of a skilled nursing facility at University Village..  

Many of the concerns appear to focus on the alleged action (or inaction) of an individual, John Bartle, who is described as holding various titles in the company that controls the CCRC's operations. At one point, the Administrative Law Judge made clear his view on Bartle's testimony:

The letter and the email reveal Mr. Bartle’s view that deadlines established by regulatory authorities performing the duties imposed on them for the protection of the public by the Legislature are not significant. This disregard, if not disdain, for the statutes and rules governing nursing home services and the enforcement of them is patent in the letter and e-mail, Mr. Bartle’s dismissive testimony about the shifting relationships of the various entities, his demeanor when testifying, and his evasive manner of answering questions when testifying. For these reasons, Mr. Bartle’s denial of the March 3 letter and much of his uncorroborated testimony are not accepted as credible.

My thanks to Karen Miller, Esq. for sharing this unusual ruling.  

June 7, 2016 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Property Management | Permalink | Comments (0)

Monday, June 6, 2016

Family Assistance & HCBS Medicaid

Justice in Aging (formerly known to many of us as the National Senior Citizens Law Center) covered a timely and important topic in their May, 2016 Issue Brief. Voluntary Means Voluntary: Coordinating Medicaid HCBS with Family Assistance was authored by Eric Carlson, well know nationally for his work regarding residents of long term care facilities. The issue brief runs 8 pages. Here is the executive summary: 

When an older adult can no longer can live independently, and is eligible for Medicaid, he or she often qualifies for home and community-based services (HCBS) that enable the individual to stay at home, rather than move to a nursing facility or other health care institution. The same is true for persons with disabilities. HCBS are provided under a service plan; under federal Medicaid regulations effective since March 2014, those service plans cannot compel unpaid assistance by family members such as adult children.

As illustrated by Medicaid hearing decisions from Florida, however, state Medicaid programs (frequently through managed care organizations) often compel unpaid assistance from family members. The managed care organizations (MCOs) authorize service levels with the presumption that family members should be  providing a certain level of personal care assistance. This leads to a lower level of Medicaid-funded service hours, which in turn requires family members to provide assistance to cover the service gap.

One problem in Florida is a "medical necessity" definition that denies Medicaid-funded services to the extent that those services are provided for caregiver convenience. This definition has been cited by MCOs and hearing officers to justify reduced levels of services, even when the caregiver’s "convenience" is his or her need to hold employment outside the home. Furthermore, twelve other states also have a similar "caregiver convenience" provision in the state’s Medicaid medical necessity definition.

In Florida and across the country, Medicaid beneficiaries and their advocates should address this problem. Florida advocates have made some progress in this area, and the state now agrees that service authorizations should respect a family caregiver’s outside employment. The Florida experience suggests the type of advocacy that could and should be pursued in Florida and other states. In individual service requests and appeals, beneficiaries and advocates should forcefully assert the voluntariness requirement of the federal service planning regulations. On a systemic level, advocates should argue for the removal or revision of "caregiver convenience" provisions, and advocate for service authorization procedures that explicitly incorporate the voluntariness requirement.

This issue brief is a "must read" for all elderlaw profs, attorneys and other advocates.  A pdf of the issue brief is available here.

June 6, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Thursday, June 2, 2016

Elder Care: A Non-Crisis Approach to Crises?

Recently I was at a dinner party with academics from across the spectrum of my university.  As often happens, a group of us seated together for the meal swapped basic information about what we do in our day jobs.  It was a fun group of art professors, special education specialists, and even an agricultural economist.  We talked art and politics across the board.  I had at first identified myself only as a professor at the law school, but during a lull in the conversation I explained my area was "law and aging" generally and more specifically the work of elder law attorneys.  Ears perked up.  

I had that experience that I suspect doctors have all the time. Everyone at the table had a question or story to tell of their family's recent aging  issue.  And as I listened, I recognized a common theme among these skilled, thoughtful professionals.  I kept hearing that we knew "mom" or "aunt" or "grandpa" was getting older, and we offered help, but the help we offered either wasn't enough or was rejected outright.  And often, the second part of their stories involved a "crisis."  A particularly poignant example was the caring granddaughter who cooked and froze two weeks of meals for her frail, housebound grandmother, only to realize that her grandmother's "little bit of confusion" resulted in her opening all of the 14 days of dinners on the very first day.  It precipitated a diabetic crisis for the grandmother, as well as the loss of the majority of the food.

Over the dinner, I was surprised to find myself talking a lot about what is dementia (and does it differ from Alzheimer's) and whether it can be distinguished from "temporary" conditions that cause short term confusion.  Everyone at the table was searching for answers and admitting they didn't know enough before the crisis event.  And I could completely empathize, because even with some 20 years of being fairly deeply immersed in elder care issues, I am regularly surprised by some new topic or challenge in my own family.

I had good reason to think about the party conversation again while listening to WITF-FM Public Radio's Smart Talk program on June 2.  The program's guests were Dr. Linda Rhodes, the former Secretary of Aging for Pennsylvania, and Joan Krechmer, a geriatric care manager and the executive director for Jewish Family Services, in York, Pennsylvania and the topic was "Caring for Mom, Dad and Kids." Lots of people calling in and writing with very specific questions, and many of the questions were triggered by both crisis events and chronic care issues.  

An example of one question was from a family member who was told the family had "24 hours" to decide about a skilled nursing facility when their loved one was being discharged from the hospital. "There is barely time to do the research" the program guests were talking about.  And that is true. Even though federal law imposes a protocol on hospitals about discharge notices, and even provides a mechanism for informal appeal, which if triggered properly can automatically result in more time, most people simply won't know about that short-term remedy in advance.

The Smart Talk radio program is part of a larger series of events on the topic of family care-giving, including airing of the PBS television documentary on Caring for Mom & Dad and in-person sessions at area locations to talk about advance planning and identify resources in advance of a crisis.   

Linda Rhodes, the former PA Secretary of Aging has written her own book, Caring for Aging Parents: The Essential Guide. 

June 2, 2016 in Consumer Information, Ethical Issues, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

What Do People Do in Retirement?

Have a plan to retire? Know how you will spend your time? AgeWave, along with Bank of America Merrill Lynch did a study on how people spend their retirements. Beyond the Bucket List: Experience Leisure in a Whole New Way provides the highlights from the study.  

Huffington Post ran two blog posts that discussed the report. New Study Uncovers the Upside of Retirement Leisure: The Freedom Zone was published on May 12, 2016 and New Study Reveals Four Distinct Stages of Retirement Leisure on May 13, 2016. The report notes that people who are retired have more free time, but transitioning from work to retirement may be a challenge for some, since, according to the report, many folks work even when they are on vacation. The report discusses emotional well-being and the value of experience over acquisition. The report also discusses the importance of saving for retirement. The report identifies "4 stages of retirement leisure" from "winding down & gearing up" to "contentment & accommodation."

To read the full report, register with Merrill Lynch to download it.

June 2, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Retirement | Permalink | Comments (0)

Tuesday, May 31, 2016

American Society on Aging Call for Proposals

The annual American Society on Aging (ASA) conference is scheduled for March 20-24, 2017 in Chicago. The planning committee is now accepting proposals to present at the conference.  For more information or to submit a proposal, click here. The deadline for submitting a proposal is June 30, 2017.

May 31, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Programs/CLEs | Permalink | Comments (0)

Friday, May 27, 2016

Filial Friday: Are Filial Responsibility Laws a Sign of the (Aging) Times?

Robert A. Mead, with many years of experience as a law librarian at the University of Kansas, the University of New Mexico and the New Mexico Supreme Court, and now serving as the Deputy Chief Public Defender for New Mexico, recently offered his take on claims made by family members and third-parties under state "filial responsibility" laws.  His article, "Getting Stuck with the Bill? Filial Responsibility Statutes, Long-Term Care, Medicaid, and Demographic Pressure," appears in the Elder Law Advisory published by Westlaw in May 2016 (and apparently available by subscription only).  He tracks the demographics of aging in the U.S. and surveys cases from Pennsylvania, North and South Dakota.  Based on research, Rob predicts:

The doubling of the number of elders in society will require a substantial increase in Medicare and Medicaid funding especially if a significant percentage of them are indigent in their last years. Without this increase, filial responsibility statutes and Medicaid estate recovery will likely be used by states to address shortfalls in Medicaid funding. . . .  Even without state authorities using filial responsibility statutes to seek Medicaid reimbursement, they will continue to be raised in related contexts. When siblings spar over the medical debts incurred by their deceased statutes and the effect of these debts on the probating of estates, filial responsibility becomes a complicating factor such as in Eori, Pittas, and Linderkamp cases. More insidiously, long-term care facilities are beginning to use filial support statutes to seek reimbursement for debts without waiting for resolution of whether the elder was eligible for Medicaid, as in Randall and Pittas. In some situations it will be financially advantageous for facilities to litigate against heirs rather than to settle for lower Medicaid rates. As the case law continues to develop and the demographic crisis grows, look for these novel uses of filial responsibility statutes to continue and become mainstream. It is incumbent upon lawyers representing clients in states with such statutes to plan and draft accordingly.

It is fun for me to see that Rob Mead, a former student from my own days at the University of New Mexico School of Law, has, entirely independent of my influence, kept his own eye on law and aging policy issues.

May 27, 2016 in Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Thursday, May 26, 2016

End of Life Prognosis: Is the Glass Half-Full or Half-Empty?

We all know folks who are the glass half-full type (optimist), as well as the glass half-empty type (pessimist).  When one talks to those folks, how those folks interpret what they hear depends on what "glass type" they are.   The Journal of the American Medical Association (JAMA) ran a story about a study, Prevalence of and Factors Related to Discordance About Prognosis Between Physicians and Surrogate Decision Makers of Critically Ill Patients.  According to the abstract, "[m]isperceptions about prognosis by individuals making decisions for incapacitated critically ill patients (surrogates) are common and often attributed to poor comprehension of medical information."

The authors noted how important it is for the health care surrogate to have information in order to make a health care decision for the patient. But, according to the study,

Numerous studies over the last 3 decades indicate that surrogates of patients with advanced illness often have optimistic expectations about prognosis. This is problematic because optimistic expectations are associated with more use of invasive treatments in dying patients and delayed integration of palliative care. Clinicians cite unrealistic expectations by surrogates as one of the most important barriers to high-quality end-of-life care in seriously ill patients.(citations omitted).  

The authors look at some of the reasons for this disparity in viewpoint (including the lack of medical knowledge by surrogates). Here is one example of their findings regarding the disparity of views:

Physician-surrogate discordance about prognosis occurred in 122 of 229 instances (53%; 95% CI, 46.8%-59.7%). Among the 229 surrogates participating in the study, 98 (43%) were more optimistic than physicians and 24 (10%) were more pessimistic. Sixty-five instances (28%) were related to a combination of misunderstandings by surrogates and differences in belief between the physician and surrogate about the patient’s prognosis; 38 (17%) were related to misunderstanding only; 7 (3%) were related to different beliefs; and data were missing for 12.

The authors explore the reasons for the surrogates' glass half-full view and learned that the surrogates felt that a positive attitude:  "would improve the patient’s outcomes or protect themselves from emotional distress"; was justified because they knew the patient better than the doctor, including knowing if the patient were a strong person; and/or was based on their religious beliefs.

The study also explored the glass half-empty views of surrogates.  The study authors concluded that "[a]mong critically ill patients receiving care in ICUs, discordant expectations about prognosis were common betwTeen patients’ physicians and surrogate decision makers and were related to both misunderstandings by surrogates about physicians’ assessments of patients’ prognoses and differences in beliefs about patients’ prognoses."

The article is available here for free

May 26, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care | Permalink | Comments (0)