Sunday, September 21, 2014

An Optimum Age to Die?

A more positive way perhaps to word the question might be "how old do you want to live to be?"  The Atlantic ran an article that phrased it a bit differently, but still focused on at what age is long lived enough?  The author, Ezekiel Emanuel, serves as Director, Clinical Bioethics Department, National Institutes of Health & chairs U. of Pa. Department of Medical Ethics & Health Policy. Why I Hope to Die at 75 appeared in the September 17, 2014 issue.  Dr. Emanuel writes about his decision that 75 is his "magic number" and how others have tried to convince him that he should change his mind on this.  Why 75? He explains

By the time I reach 75, I will have lived a complete life. I will have loved and been loved. My children will be grown and in the midst of their own rich lives. I will have seen my grandchildren born and beginning their lives. I will have pursued my life’s projects and made whatever contributions, important or not, I am going to make. And hopefully, I will not have too many mental and physical limitations. Dying at 75 will not be a tragedy. Indeed, I plan to have my memorial service before I die. And I don’t want any crying or wailing, but a warm gathering filled with fun reminiscences, stories of my awkwardness, and celebrations of a good life. After I die, my survivors can have their own memorial service if they want—that is not my business.

He makes it clear that he is not supporting physician-aided dying and if he lives past 75, so be it-he's not going to take steps to end his life. Where his wish comes into play is the type of health care he will consent to receiving once he hits that age.  He argues that more years don't necessarily mean good years, noting that seventy is NOT the "new fifty".  Although older folks may be more active or in better health, there is still a rise in disability which he points to as a reason that the focus shouldn't just be on quantity.  He quotes another expert, "health care hasn’t slowed the aging process so much as it has slowed the dying process."  The fact of living longer but more incapacitated holds no appeal for him. 

Dr. Emanuel looks at examples of health care issues, such as stroke and dementia, using statistics and real stories to illustrate his point.  Regarding Alzheimer's, after citing to statistics on the correlation between aging and dementia, he offers

[e]ven if we aren’t demented, our mental functioning deteriorates as we grow older. Age-associated declines in mental-processing speed, working and long-term memory, and problem-solving are well established. Conversely, distractibility increases. We cannot focus and stay with a project as well as we could when we were young. As we move slower with age, we also think slower.

He also discusses the correlation between age and creativity-an inverse relationship it seems--the older you are, the less creative, unless you are one of those rare individuals (we all know of someone quite famous who did something remarkably creative at an advanced age---think Grandma Moses).

As we age, to accommodate our "current selves" we constrict how we live, and as Dr. Emanuel describes, we find ourselves "aspiring to and doing less and less".  Yet we each enjoy different things. This calls to mind some of the arguments we hear about the use of substituted judgment in health care/end of life decision-making. We each define a quality of life in different ways, and Dr. Emanuel recognizes that his view may be a bit harsh.

Yet, he contends, it is not about the elder individual racking up the years.  There is a burden on the family to be considered, and he says "I will leave aside the very real and oppressive financial and caregiving burdens that many, if not most, adults in the so-called sandwich generation are now experiencing, caught between the care of children and parents. Our living too long places real emotional weights on our progeny."

Back to his plan when he reaches 75. As far as health care, here is his plan: to "stop getting any regular preventive tests, screenings, or interventions ... [and] accept only palliative—not curative—treatments if ... suffering pain or other disability."  He makes it clear that this is his view and he respects the views of others that are contrary to his.

This article provides a wealth of topics for discussions with our students and is worthwhile reading, even though you may hold a contrary view to Dr. Emanuel.

September 21, 2014 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Death Bed Radio

Seems like there have been several interesting developments in the past few weeks regarding end of life decision making. Thanks again to Charlie Sabatino, Executive Director of the ABA Commission on Law & Aging. former NAELA president, national expert on end of life issues and all around great guy, for sending me an email about the series run on WNYC public radio. The station ran a 3 part series on "death beds"  The first, Death Beds: Terminally Ill, But Constantly Hospitalized aired on September 8, 2014.  The second, Death Beds: Too Little, Too Late for Many New Yorkers Seeking Hospice aired the next day, and the third, Death Beds: Living Wills Slowly Take Root aired on September 10, 2014.

Each  includes the audio recording as well as the print story. Worth a listen!

September 21, 2014 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Thursday, September 18, 2014

Institute of Medicine-New report: Committee on Approaching Death

The Institute of Medicine of the National Academies has released a new report on end of life issues. The report, Dying in America: Improving Quality and Honoring Individual Preferences Near the End of Life  was released on September 17, 2014. The report brief offers an explanation of the importance of this new survey, including the sheer numbers of American elders who are living with some limitations on ADLs, chronic illness, cognitive issues and more.  As well the report points to issues with the health care system, including problems in accessing care, a lack of palliative care specialists and knowledge about end of life care, and a health care system that works out of sync, with economic incentives. The brief concludes with a call for "person-centered, family-oriented approach that honors individual preferences and promotes quality of life through the end of life [as] ... a national priority."  The report is "a comprehensive assessment of the knowledge gaps, structural problems, and financial disincentives that hamper delivery of optimal care and makes cross-sectoral recommendations to achieve compassionate, affordable, sustainable, and effective care for all Americans."

The website also includes a link to key findings, core components, an infographic and a quiz (5 questions) which is suitable for use in class.

The full report may be purchased as a book or downloaded as a pdf for free (registration is required).
Thanks to Charlie Sabatino for alerting me to this!

September 18, 2014 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 17, 2014

Moving Video from Cleveland Clinic

If you haven't seen this yet, it's worth watching--and showing to your class. Titled Empathy: The Human Connection to Patient Care, the video runs just over 4 minutes. It can be accessed here.

(Thanks to Judy Stein, Executive Director for the Center for Medicare Advocacy (CMA) for sharing this).

September 17, 2014 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Question: What's the Green House Project? (Hint: It's Not About Growing Tomatoes)

Recently I sat in on a very interesting webinar on The Green House Project.  I had heard the phrase "green house" connected to new options for Continuing Care Retirement Communities (CCRCs), but I was not sure what it entailed, and it turns out it is not limited to CCRCs.  (When I first heard the term, I confused it with "green designs" intended to lower energy costs, or perhaps some movement to include gardening as therapy.) 

Here are a few highlights from what I now understand:

  • The Green House Project, about 11 years old, began with development support from a number of funding sources, including the Robert Wood Johnson Foundation, as a new approach to long-term care, requiring a major change in thinking about senior housing design and staffing.
  • The hallmark is person-centered care in a cluster setting of no more than 12 individuals, preferably 10.
  • Residents have individual bedrooms and bathrooms, thus creating "home" environments.
  • Meals are prepared and served in the central space - again, an effort to provide "home" settings.
  • No call buttons, no nursing stations, and as few wheelchairs as possible.
  • Expanded roles (and enhanced esteem) for staff members; the in-house caregivers or "shahbazim" have a wider range of responsibilities that include cooking and activity planning, and these roles involve specialized training.

Individual facilities can become "trademarked" Green Houses -- although the term has also become something of a trend in the senior housing industry, without being tied strictly to trademarking.  The Green House Project, a nonprofit organization, charges fees for formal consultations in the planning process. In some instances, fees may be covered by grants from other foundations. 

Here's the link to the Green House Project website, including information on additional upcoming (and free!)  webinars on financing, plus opportunities to participate in on-site workshops. I can see these as useful resources for students asked to consider new models for care.

September 17, 2014 in Health Care/Long Term Care, Housing, Webinars | Permalink | Comments (0) | TrackBack (0)

Friday, September 12, 2014

Book Review--Government Regulation in Excess?

Our friend and health law/elder law rock star, Marshall Kapp, sent me a note about a book review  he authored (thanks Marshall) that appears in The Gerontologist Advance Access.  The review is of the book, The Rule of  Nobody: Saving America from Dead Laws and Broken Government by Phillip K. Howard.

You may be wondering why a blog for elderlawprofs is posting about laws and government regulations.  Three words: nursing home regulation. Although a subscription is required to read the full review, an excerpt is available for free, much of which I have reproduced here

The brilliant satirist Jonathan Swift said long ago, “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.” (Brainy Quote, n.d.). Swift certainly did not intend that remark as a compliment to either laws or cobwebs. Nonetheless, almost all laws originate to accomplish some reasonably defensible public purpose, even though ... poorly drafted, inconsistently ... enforced, and perpetuated beyond ... their original justification ....             

In this latest project, Howard despairs that regulation in the United States has veered far from its proper function as a setter of boundaries or parameters within which individuals are empowered... (end of excerpt).

Since Marshall sent me a full copy of the book review, I can explain further what the abstract does not, how the author uses nursing home regulations as an example. Marshall describes this on page 1-2 of his review

One of the primary examples that author Howard utilizes throughout The Rule of Nobody to illustrate his constructive critique about the largely dysfunctional nature of the contemporary American regulatory situation is the overwhelmingly extensive and complex set of formal command and-control rules we have promulgated on the federal and state levels to govern the operation of nursing homes.

Marhsall offers a bit of history as to why we have so many laws and regulations for nursing homes and suggests that now is "the time to seriously contemplate smarter, rather than just bigger, regulation...." (review at page 2). He notes that the author provides examples of when the regulations don't end up benefitting the residents, with current regulations stifling innovation. (review at 3).  Marshall concludes his review with this summary

[T]he Rule of Nobody is noteworthy for the nation generally and for long-term care policy-makers particularly... Settling for being “in the ball park” is damning with faint praise, indeed. The only option for many vulnerable individuals is dependence on the benevolence of nursing home owners and workers and lawmakers’ careful guidance. Society owes them a system of oversight and influence that not only aspires to, but effectively achieves, a much loftier standard.

Another one to add to the reading list.

September 12, 2014 in Books, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Thursday, September 11, 2014

Fed Court in NY Takes Hard Line on Effect of "Partial Cure" for Medicaid Ineligibilty

Judge Geraci of the U.S. District Court, Western District of New York, is the latest judge to address an important topic in Elder Law regarding eligibility for long-term care benefits under Medicaid.  The court defines the issue as follows:  "When an uncompensated transfer of assets has been made and a [Medicaid] penalty period imposed, how does a partial return of the transferred funds affect the beginning of the penalty period?"  

In its August 2014 decision in Aplin v. McCrossen, the court addresses summary judgment motions in two separate cases that were filed on behalf of 80-year-old Florence Aplin and 85-year old Sergio Ciardi, both residents of nursing homes.  In one case, for example, the Aplin case, the transfers totaled approximately $450,000; however, approximately $76,000 was later returned by the donees. The hope of the plaintiffs was that "return" of the money would permit them to shorten their penalty periods tied to the original transfers.  This approach, when planned in advance, is a post-Deficit Reduction Act technique sometimes known in Elder Law circles as a "partial cure" (as part of "reverse half-a-loaf" gifting).

Judge Geraci denied the relief sought by the plaintiffs.  He followed the hardline approach of "nonprecedential" rulings on New Jersey disputes about partial cures, ruling that "return" of money permits the state agency to recalculate the start of the penalty period. The court decided that NY administrative rules do not conflict with federal policy and not only permit but require the state agency to, in effect, restart the penalty period on the ground that the later date is when the "applicant becomes otherwise eligible for Medicaid." This phrase is a key concept in federal Medicaid law.  The plaintiffs had argued that phrase applied only to an earlier date, from their original application. Judge Geraci concluded:

"I find no circumstances in this case which indicated that Defendants' interpretation and application of the provisions of [New York administrative directives] contravene Congress' articulated purpose in enacting the Medicaid Act -- to provide medical care, services and supplies for the financially needy.  Essentially, the assessment of an applicant's income and resources which results in a determination that such applicant has transferred resources for less than fair market value during the statutory look-back period and that an appropriate penalty period must be imposed, ensures that the applicant has not falsely impoverished himself or herself in order to qualify for medical assistance at public expenses which, by law, is undeserved."

While it is apparent that the New York federal judge was not eager to give applicants any benefit tied to partial cures on transfers, the decision also appears to approve or at least ignore what some would describe as a "perverse effect" of the New York policy.  By imposing a new, later "start date" for the ineligibility period following the return, New York can actually impose a penalty that is longer than the original penalty period for the full transfer. 

Also at issue in the case was the effect of a series of statements on the federal government's side, including the so-called "McGreal Letter" from CMS that was relied on by the plaintiffs in making the returns. (The court did not expressly address a May 2014 GAO study, where it was reported at page 28 that "[a]ccording to CMS, states can choose whether or not to consider a partial return of transferred assets on Medicaid planning.")

Should there be uniformity among the states, not just on whether but how families can seek any relief from "resource" limits set by federal law?  (The GAO study linked above indicates a range of different state-specific options are in play.) The answer to that question may depend on one's point of view.

For more background on the complex interaction between Medicaid applications, ineligibility periods triggered by uncompensated transfers, partial cure attempts and penalty start dates, see ElderLawGuy Jeff Marshall's blog post from 2011.    

September 11, 2014 in Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 9, 2014

A Psychiatrist Shares Her Personal Journey with Grief

In Psychiatric Times, Dr. Anandhi Narasimhan, California-based and board certified in psychiatry and neurology, compares her professional and personal experiences with grieving following the death of her father.  She writes well, and in additional to offering suggestions for coping, she shares this poignant detail from her father's life, which also served to introduce me to a new and intriguing idea, "dialysis at sea."   She writes:

"My father was a distinguished scientist who placed value on education. Although he did not believe in lavishness, he always liked to present himself in a well-groomed fashion. I miss his sense of humor, and I have discovered how important such a quality can be when faced with tough times. Remembering his witty repertoire reminds me to celebrate his life.

 

The picture I have included [with her essay in Psychiatric Times] is from an Alaskan cruise my family took. We had talked about taking a cruise as a family in the past; this had been a dream of my father’s. When he was placed on regular dialysis treatments, he said, 'I guess now I won’t ever be able to go on a cruise.'

 

It wasn’t until I saw a poster advertising 'Dialysis at Sea' that I realized we could make his dream come true. With some logistical planning, transferring of medical records and such, we were able to take my father on an Alaskan cruise, an experience he both treasured and loved.When I was growing up, my father had a sort of utilitarian view of vacations—we often had to be doing and seeing things; they had to be productive. This vacation was different—it was nice to see him relax and enjoy the awesome beauty of Alaskan glaciers. His smile in the picture is how I would like to remember him: intelligent, positive, humorous, and charming."

Read more of "My Father's Influence" here

September 9, 2014 in Health Care/Long Term Care, Science, Travel | Permalink | Comments (0) | TrackBack (0)

Friday, September 5, 2014

Technology for Caregiving-A Tool, Not A Replacement?

We have several posts about the use of technology in caregiving.  I cover it in my classes (do you?) and in particular, I want my students to think about consent, privacy and autonomy.  Several years ago, there were stories about PARO, a therapeutic interactive robot designed to resemble a baby harp seal, and its use with certain individuals, including those residing in nursing homes.  (The company website has quite a bit of information about PARO, including research papers.)  There are lots of different types of technologies available, whether assistive or monitoring. 

A recent article in the San Jose Mercury News  (and picked up by my local paper, the Tampa Bay Times) Meet Paro, a robot designed to help the elderly, reports on the results from using Paro in a local retirement community.    This article looks at the issues of ethics as well as how the use of such "socially assistive" robots results in less isolation for some residents.  The story highlights the interactions of some residents with the robot.  The article also reviews the debate regarding using such robots.  For example, Sherry Turkle, an MIT social scientist is quoted in the article offering a concern that

"faux relationships" with machines may detract from human connections..."It's not just that older people are supposed to be talking. Younger people are supposed to be listening... [and] ... [w]e are showing very little interest in what our elders have to say." Robots like Paro may offer comfort to isolated seniors, Turkle has written, but it could "make us less likely to look for other solutions for their care."

Another expert, Professor Maja Mataric,  offers a counter-view, that such robots provide both "valuable reinforcement and motivation" and notes that

While robots aren't a complete substitute for human interaction, she stressed, they may play a vital role since "there just simply aren't enough people to take care of our very large and growing elderly population." ... [and] added: "We need to think about the humane and ethical use of technology, because these things are coming."

I think this is a great topic for discussion with students.  Let me know what you think.

September 5, 2014 in Cognitive Impairment, Dementia/Alzheimer’s, Health Care/Long Term Care, Web/Tech | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 3, 2014

Not Your Typical Phone Call

We get calls of all types, on our cell phones and for those of us who still have them, our land lines. Imagine a phone call offering you counseling on end of life options. Sound far-fetched? Not so much for some. Kaiser Health News (KHN) ran a story in late August,  Operator? Business, Insurer Take On End-of-Life Issues By Phone. The article describes a company  "Vital Decisions... [where] [a]fter sending a letter (people rarely respond) counselors essentially cold-call to offer what they describe as “nondirected” end-of-life counseling" to those who are quite ill.  The company uses social workers to make the calls, which are short (about 15 minutes). Here's what the program is designed to achieve:

to build a relationship over the phone, [with the patient] so [the patient] might be comfortable discussing his situation and his goals. Then he’ll be empowered to communicate those things with others, including his family and his doctors. He could also choose to allow the counselor to talk to his doctors or family directly. It’s paid for by insurers and federal privacy rules permit this for business purposes.

According to Vital Decision's CEO, the goal is to facilitate discussions about end of life care and empower the patient's decision-making.  "The goal is for patients to receive care in those final months that aligns with what the patient wants, even if that's the most aggressive treatment available." Some are skeptical of this phone approach because of the lack of in-person interaction and the challenges to remain neutral, which is why one expert calls for "full transparency from insurers and the company to guard against bias in the sessions."

September 3, 2014 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Monday, September 1, 2014

A Love Story Without a Happy Ending (But Not Without Hope)

Book by Meryl Cover Slow Dancing With A StrangerWashington Post writer Frederick Kunkle profiles Meryl Comer, author of "Slow Dancing With a Stranger," a new book that "offers an unflinching and intimate account about what it means to surrender one's career to care" for a loved one stricken with Alzhemier's.  In describing the  author and her book, he writes:

"Its a a love stsory without a happy ending, because the ending for Alzheimer's patients can seem more like endless twilight.  And it's a call to arms for caregivers such as Comer....

When Alzhemier's took hold, [her husband, chief of hematology and oncology at NIH, Harvey Gralnick] was a fit 56-year-old -- he ran six miles a day -- who dressed impeccably wearing the latest fashions beneath his lab coat.... For a time, he was able to mask his symptoms behind his reputation as a brilliant if eccentric scientist....

As  his condition worsened, Comer, too, gave up her career -- and she adds with a note of bitterness, her 'prime.' In her blunt-talking manner, she acknowledged that she did so not entirely out of devotion but because doctors told her more than once, wrongly, that the progress of her husband's disease would not be long.

Finances, too, were a factor.  It was almost impossible to find care that she felt would be satisfactory for her husband and yet affordable.  Her burden intensified even further when her mother, too, developed Alzheimer's; her mother now shares the same home with Comer and her husband."

The book is meant to make people mad -- and more realistic and focused -- about the need for solutions. The article quotes George Vradenburg, a co-founder with Comer of the nonprofit group USAgainstAlzheimer's, who hopes that Comer's book will stir conversations about a disease many prefer not to think about. "I hope America gets mad," Vradenburg is quoted as saying.

For more, see "Alzheimer's -- Thief and Killer," in the Washington Post.

 

September 1, 2014 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Monday, August 25, 2014

New York Times Says Medicare "Star" Ratings Allow NHs to Game System

In a feature article on Medicare's "star ratings," the New York Times reports that some nursing homes are able to "game the system" through self-reports of data that fail to include complaints filed with state agencies.  The article uses examples to show that even five star ratings, the highest available,  can be obtained despite pending state investigations into serious allegations of mishandled care.  The ratings by Medicare were intended to provide an objective measure for consumers and in recent years a growing proportion of nursing homes have obtained higher ratings. 

"But some nursing homes are not truly improving. Instead, they have learned how to game the rating system, according to ]New York Times] interviews with current and former nursing home employees, lawyers and patient advocacy groups. Nationally, the proportion of homes with above-average ratings has risen steadily. In 2009, when the program began, 37 percent of them received four- or five-star ratings. By 2013, nearly half did.

 

The Times analysis shows that even nursing homes with a history of poor care rate highly in the areas that rely on self-reported data. Of more than 50 nursing homes on a federal watch list for quality, nearly two-thirds hold four- or five-star ratings for their staff levels and quality statistics. The same homes do not fare as well on the sole criterion that is based on an independent review. More than 95 percent of the homes on the watch list received one or two stars for the health inspection, which is conducted by state workers."

For more, see "Medicare Star Ratings Allow Nursing Homes to Game the System" by Kate Thomas.

August 25, 2014 in Health Care/Long Term Care, Medicare, State Cases | Permalink | Comments (0) | TrackBack (0)

Sunday, August 24, 2014

Pennsylvania Commission Urges Reforms for Long-term Care Services & Supports

The Pennsyvania Joint State Government Commission issued a final report of its Advisory Committee on Long Term Care Services and Support for Older Pennsylvanians on August 21, 2014, following a year-long assessment of existing concerns of independent and care-dependent elders in Pennsylvania.

In a one-page summary of the 200 page report, the Commision makes the following Recommendations:

"Opportunities exist to improve system structure and organization, reduce barriers, and break down silos that characterize service delivery and payment. Better care transitions and improved coordination of service providers are also crucial, along with increased support for family caregivers. Focused information and awareness for consumers and families helps ensure they know where to turn when a crisis hits, which is often their first exposure to long term care. Expanding access to services and supports, through a tiered system that shares costs, will help improve quality and increase accountability. Enhancements to local resources, including Area Agency on Aging networks, will focus services and advance more equal community, facility, and home care options. These reforms will help ensure access to long term care for all Pennsylvania seniors, and prevent those who need assistance but don’t qualify for supports, from falling between the cracks."

Now comes the hard work . . . getting to an implementation stage.

August 24, 2014 in Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, August 22, 2014

Canadian Medical Ass'n President says warehousing seniors costs billions

 
Canada's hospitals are "overflowing at the seams" with patients who don't need to be there - frail and aging seniors, many of them with dementia, who have nowhere else to go, says the incoming leader of the Canadian Medical Association. The "warehousing of seniors" is costing the system $2.3 billion a year and highlights urgent need for a national rethink of seniors' care, Dr. Chris Simpson said in his inaugural speech Wednesday as CMA president.

Simpson, who also chairs the national Wait Times Alliance, said Canadians are facing long waits for virtually every non-urgent test, surgery or procedure "because the beds needed are filled with patients who don't need to be in hospitals."

Seniors awaiting placement in other facilities are occupying about 15 per cent of hospital beds. But "instead of focusing on getting them back to their independence we put them in beds, because that's what we do in hospitals. We put people to bed instead of putting them in a care environment that lifts them up and restores them and helps them live a dignified life."

Read more here.

August 22, 2014 in Health Care/Long Term Care, International | Permalink | TrackBack (0)

Thursday, August 21, 2014

Watch Oral Argument Before Ohio Supreme Court on "Asset Transfer" Case

Wow!  Medicaid transfer rules argued in prime time!  (Well, almost...)

On August 20, the Ohio Supreme Court heard oral argument on Estate of Atkinson v. Ohio Dept. of Job & Family Services, Case No. 2013-1773.  Video of the presentations (including the very interesting questions from the bench) can now be viewed here on the Ohio Channel. 

This strikes me as a great opportunity for Elder Law course students to read briefs and observe lawyers in oral argument tackle technical, challenging legal issues (listen to the Court ask one attorney to slow down and explain his use of pronouns).  Can you predict the outcome?  Note: The Supreme Court's arguments on Ohio Channel appear as high quality productions, well edited, with subtitles indicating the names of the speakers and the identity of the issues on appeal, and the website is searchable for other appellate cases for faculty members looking for examples to use in other classes.

As framed in the appeal, the issue is whether the community husband's actions triggered a period of ineligibility for Medicaid benefits for his wife in the nursing home.  The record showed the husband transfered the couple's  home "out" of the couple's long-standing revocable trust to the name of the institutionalized spouse, and then in turn, the same day, to the community spouse.  As described in one news account:

"The county department of job and family services found that the transfer of the home, valued at $53,750, was improper because it violated federal and state Medicaid rules. While Mrs. Atkinson’s Medicaid benefits were approved, the agency temporarily excluded nursing-home care from her coverage because of the transfer." 

The state has been successful with its arguments before state agencies up to this point.  The Ohio  Supreme Court, however, asked the attorneys about the applicability and relevance of the 6th Circuit's 2013 decision in Hughes v. McCarthy regarding permitted use of spousal annuities in Medicaid planning in Ohio.  During the oral argument, one Justice also asks whether the state should be bound by the position taken by the federal agency, Health and Human Services (apparently in an amicus brief), in support of the family's argument. 

There are also opportunities here to think about whether -- and how -- this particular transfer issue might have been avoided with different planning. 

August 21, 2014 in Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 19, 2014

Discharge from Hospice

We have blogged previously on hospice, and a new article adds to the body of literature on the subject.  The Journal of Palliative Medicine published an article by Dr. Joan Teno, Dr. Michael Plotzke, Dr. Pedro Gozalo, and Dr. Vincent Mor, A National Study of Live Discharges from Hospice. The study recognizes that there are various reasons that a person may leave hospice care, such as "patients decide to resume curative care, their condition improves, or hospices may inappropriately use live discharge to avoid costly hospitalizations." The abstract offers the following conclusion-about 20% of "hospice patients are discharged alive with variation by geographic regions and hospice programs. Not-for-profit hospices and older hospices have lower rates of live discharge."  Why is it important to study this? As the introduction to article points out, there are instances when a provider may improperly discharge a patient and the timing can be telling: improper admission to hospice at the beginning or an effort to avoid costs.  Building on existing research, this study finds similar results in some areas, but makes some important conclusions that deserve additional study

Provide and state variation raises concern that live discharges are not driven by patient preference but by provider and market behavior. Hospice programs that exceed their aggregate reimbursement caps (a marker for hospices with an excessive average hospice length of stay) had nearly double the rate of live discharges compared to hospice programs that did not exceed their aggregate cap.

The authors suggest there are certain red flags that should alert regulators that more careful scrutiny is needed for a specific hospice.

A hospice program with a high rate of live discharges deserves regulatory scrutiny especially when they have a pattern of hospitalization and hospice readmission. With increased hospice competition or potential future changes in hospice payment policies, hospices may change their enrollment and pattern of live discharges to maximize their profitability. Potentially, live hospice discharges represent a vulnerability of the Medicare Hospice Benefit. Hospices with high rate of these patterns of live discharges should trigger further regulatory review that examine whether their hospice enrollees were eligible, adequately informed about the Medicare hospice benefit before electing hospice, and whether the hospice program did a good enough job of advance care planning to avoid hospitalizations.

 

August 19, 2014 in Consumer Information, Health Care/Long Term Care, Medicare | Permalink | Comments (0) | TrackBack (0)

Increase in seniors with HIV

 The Centers for Disease Control says more than 1 million people in the U.S. are living with HIV, and almost 1 in 6 don't know they are infected. This could affect Suncoast seniors who may be unaware of the dangers.  There are certain things we are hesitant to discuss with children, and frequently those same topics are avoided with seniors. But whether we address it or not, older people are not only sexually active; according to the American Academy of HIV Medicine, by 2015, half the U.S. HIV population will be age fifty or older.  “But they think they're not at risk. In their day, condoms were only for birth control. And so today, they don't have to worry about birth control and they don't know about HIV and all the other STD's that they could have to worry about.”  Seniors with HIV that don't realize it are in a very dangerous position. “HIV accelerates and predisposes you to a number of diseases which causes death.

Read more:  WWSB/ABC News

August 19, 2014 in Health Care/Long Term Care, Other | Permalink | TrackBack (0)

Sunday, August 17, 2014

Medicare Fraud

The Washington Post ran a fascinating article on a particular Medicare scam.  A Medicare Scam That Just Kept Rolling was published August 16, 2014 and focuses on power wheelchairs. The article offers a detailed look at how this particular scam worked.

The wheelchair scam was designed to exploit blind spots in Medicare, which often pays insurance claims without checking them first. Criminals disguised themselves as medical-supply companies. They ginned up bogus bills, saying they’d provided expensive wheelchairs to Medicare patients — who, in reality, didn’t need wheelchairs at all. Then the scammers asked Medicare to pay them back, so they could pocket the huge markup that the government paid on each chair.

This eye-opening article points out that the depth and breadth of the scam remains largely unknown, but is on its way out.

But, while it lasted, the scam illuminated a critical failure point in the federal bureaucracy: Medicare’s weak defenses against fraud. The government knew how the wheelchair scheme worked in 1998. But it wasn’t until 15 years later that officials finally did enough to significantly curb the practice.

The article is accompanied by a video that shows in "four easy steps" how to perpetrate a Medicare scam as well as a sidebar with slides showing how the power wheelchair scam works.  Variations of the scam are more than 40 years old and have morphed with the times.

If you aren't shaking your head in wonder now, consider why these scams can happen:

[F]or Medicare officials at headquarters, seeing the problem and stopping it were two different things. 

That’s because Medicare is an enormous system, doing one of the most difficult jobs in the federal government. It receives about 4.9 million claims per day, each of them reflecting the nuances of a particular patient’s condition and particular doctor’s treatment decisions.

By law, Medicare must pay most of those claims within 30 days. In that short window, it is supposed to filter out the frauds, finding bills where the diagnosis or the prescription seem bogus.

The way the system copes is with a procedure called “pay and chase.” Only a small fraction of claims  3 percent or less — are reviewed by a live person before they are paid. The rest are reviewed only after the money is spent. If at all.

The whole thing is set up as a kind of honor system, built at the heart of a system so rich that it made it easy for people to be dishonorable.

The article talks about comparisons--the amount of money spent on power wheelchairs as compared to the total amount of dollars spent in the Medicare universe and although the amount spent on wheelchairs is a lot, it's a small amount in that universe.  The article mentions the steps the government has taken to end the motorized wheelchair scam such as competitive bidding and rent-to-own. So if the wheelchair scam is on the decline, what's the next one? According to the article, orthotics and prosthetics. Stay tuned...

August 17, 2014 in Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Medicare | Permalink | Comments (0) | TrackBack (0)

Thursday, August 14, 2014

Health Affairs Call for Papers: Caring for Older Adults

Health Affairs Journal: Call for Papers on Care for Older Adults


The journal Health Affairs is seeking articles on older adults, and specifically regarding the care and management of multiple chronic conditions among this population. We are interested in work that spans the full range of care settings, including primary care and specialty practices, hospitals, nursing homes and other long-term care settings. We are grateful to The John A. Hartford Foundation for providing support for our ongoing coverage of these topics. There is no deadline for submissions; papers on these topics will be considered on an ongoing basis and considered for publication through 2015. For more information, contact Health Affairs executive editor, Don Metz: dmetz@projecthope.org.

August 14, 2014 in Dementia/Alzheimer’s, Health Care/Long Term Care, Other | Permalink | TrackBack (0)

Tuesday, August 12, 2014

Genworth Long-Term Care Insurer: More Changes on the Horizon?

It is no secret that the long-term care insurance industry has struggled to offer products that are both attractive and affordable for consumers and financially worthwhile for the insurance companies.  MetLife and Prudential no longer offer new policies, for example.

Genworth, the largest provider of long-term care insurance, announced on July 29, 2014 that its second quarter showed significant changes and that it is conducting a comprehensive review of its long term care insurance claim reserves. Apparently the company's investors have asked for additional information, following the last in-depth review of the claims reserve, which was conducted in 2012.  Genworth's news release explained:

"The primary areas of focus in the current review are: (i) an analysis of potential causes of the meaningful increases in adverse claims experience in the second quarter of 2014 and (ii) an assessment of the assumptions and methodology underlying the associated reserves, including morbidity, mortality, interest rates and claim terminations. The company intends to complete this review before the release of financial results for the third quarter of 2014. The company continues to believe that the existing assumptions and methodology provide the most reliable best estimate. However, given the review underway that will consider both long-term and recent experience, the company will likely change some of its assumptions, which could increase our long term care insurance claim reserves, and any increase may or may not be material."

As reported by Reuters, ratings of Genworth by Fitch already assume some level of LTC earnings and reserve volatility, but depending on the size of any charges taken by Genworth in the third quarter, "Fitch may review the ratings of GNW [Genworth] and the review could result in a revision in the Outlook to Negative or a rating downgrade."

August 12, 2014 in Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)