Tuesday, November 25, 2014
Ramping up into Thanksgiving celebration, thinking about the things for which we are thankful---how about adding caregivers to that last? Huffintong Post Third Metric ran a three-part series earlier this month on Unsung Heroes: The Face of American Caregiving. The Unsung Heroes Who Give Up Everything To Take Care Of A Sick Partner, the first installment in the series, focused on eleven extraordinary caregivers providing care to spouses/partners. The second, The Unsung Heroes Who Give Up Everything To Take Care Of A Sick Parent covers 10 family members providing care for their parents., 9 of whom are over the age of 50. The final installment, The Unsung Heroes Who Give Up Everything To Take Care Of Multiple Loved Ones covers ten amazing individuals who have provided care for multiple generations.
Knowing the statistics on caregiving, a number of us will be called upon to provide the care. These folks will inspire you. Happy Thanksgiving.
Sunday, November 23, 2014
From Kaiser Health News, this report of "confusion, frustration and resistence," associated with California's first six months of efforts to move 500,000 low-income seniors and disabled persons into managed care:
"'The scope and the pace are too large and too rapid for what is supposed to be a demonstration project,' said Dr. William Averill, executive board member of the Los Angeles County Medical Association, which filed a lawsuit to block the project. 'We are concerned that [the project] is ill-conceived, ill-designed and will jeopardize the health of many of the state’s most vulnerable population – the poor, the elderly and the disabled.'
There is a lot riding on the pilot — the largest of its kind in the nation. The patients involved are among the most expensive to treat – so-called 'dual eligibles,' who receive both Medicare, the health insurance program for the elderly and disabled, and Medicaid, which provides coverage for the poor. Over the three years of the demonstration project, California is focusing on 456,000 of the state’s 1.1 million dual eligibles.
State officials acknowledge some transition problems but say the project will provide consumers with more coordinated care that improves their health, reduces their costs and helps keep them in their homes. In addition, officials estimate the program could save the state more than $300 million in fiscal year 2014-2015."
For more, read "California's Managed Care Project for Poor Seniors Faces Backlash," by Anna Gorman.
Friday, November 21, 2014
On November 19, attorneys representing families and the Commonwealth of Pennsylvania argued consolidated cases before a panel of the Third Circuit Court of Appeals, involving use of short-term annuities in connection with applications for Medicaid-funded care. The argument follows appeals from a January 2014 decision on summary judgment motions by the Western District of Pennsylvania in the case of Zahner et al. v. Commonwealth of Pennsylvania.
A key issue on appeal is whether use of "shorter" term annuities is permitted by the language of federal Medicaid statutes referring to actuarially-sound annuities, or whether such use automatically constitutes a transfer of assets for less than fair value, and thus is treated as a prohibited gift. HCFA Transmittal 64 is the subject of much of the very technical debate.
The jurists on the panel are Judge Theodore McKee (the male judge's voice on the recording), Judge Marjorie Rendell, and Senior Judge Dolores Sloviter (the softer voice on the recording). Interestingly, rather early in the argument, at least two of the judges interject to make the observation that "there is nothing wrong with Medicaid planning, per se," noting, rather, that the issue is the extent to which specific planning approaches have been directly addressed by federal law.
Listening to the oral argument in this case provides an opportunity for students in advanced legal studies on asset planning to consider cutting edge legal issues and policy concerns. The argument is also an opportunity for even first-year law students to discuss argument techniques, and to consider what does or does not work well with judges (and vice versa). It was a "hot" bench and there was a lot of interruption from both sides.
Thursday, November 20, 2014
The Institute of Medicine (IOM) has released a great graphic on palliative care. What Should You Know About Palliative Care? has six graphics on topics including scope, function, location, family services and the benefits of palliative care. The infographic can be downloaded or a poster can be ordered by sending an email. The webpage also includes a link to the IOM report, Dying In America
Wednesday, November 19, 2014
This is one list where we don't want to be last-yet we are. According to a Commonwealth Fund November 19, 2014 story, U.S. elders are the sickest when compared to 10 other countries. 11-Nation Survey: Older Adults in U.S. Sickest, Most Likely to Have Problems Paying for Care notes that "[c]ompared with their counterparts in other developed countries, older adults in the United States are sicker, see more doctors, take more prescription drugs, and have a harder time affording the care they need, according to a new Commonwealth Fund survey of people age 65 and up." The survey is published in Health Affairs . The abstract for the article explains
Industrialized nations face the common challenge of caring for aging populations, with rising rates of chronic disease and disability. Our 2014 computer-assisted telephone survey of the health and care experiences among 15,617 adults age sixty-five or older in Australia, Canada, France, Germany, the Netherlands, New Zealand, Norway, Sweden, Switzerland, the United Kingdom, and the United States has found that US older adults were sicker than their counterparts abroad. Out-of-pocket expenses posed greater problems in the United States than elsewhere. Accessing primary care and avoiding the emergency department tended to be more difficult in the United States, Canada, and Sweden than in other surveyed countries. One-fifth or more of older adults reported receiving uncoordinated care in all countries except France. US respondents were among the most likely to have discussed health-promoting behaviors with a clinician, to have a chronic care plan tailored to their daily life, and to have engaged in end-of-life care planning. Finally, in half of the countries, one-fifth or more of chronically ill adults were caregivers themselves.
The full article is available on the web as a pdf here.
Earlier this month, Yale Law School hosted a conference marking the 50th anniversary of the passage of Medicare and Medicaid. The program speakers were encouraged to examine the precedents set by these two major programs, against the backdrop of recent health care reform initiatives. Videos from sessions on "The Law of Medicare and Medicaid at 5o" are now available to the public, including segments on:
- Medicare, Then and Now
- Historical Context, Legislation & Administration
- Policy Making and Innovation
- Health Law Federalism, Especially After NFIB
- Looking Ahead
In addition, the presentation by keynote speaker Ezekiel Emanuel, Vice President of Global Initaitives and Chair, Medical Ethics and Health Policy at the University of Pennsylvania is available.
The video segments, while interesting, may be a little difficult to sit through, as they are not edited, and some of the speakers are not using the microphones. Fortunately, Professor Allison Hoffman from UCLA School of Law and others have written a wonderful series of pieces, stemming from the Yale program sesssions, and the articles are posted on Health Affairs Blog.
Tuesday, November 18, 2014
In Gunnarson v. Transamerica Life Insurance Company, a federal district court in the state of Washington issued a November 6, 2014 order remanding the case to state court on diversity grounds, rejecting the company's argument that joinder of an individual sales agent as a defendant in the case was merely a step to prevent the out-of-state corporate entity from removing the case to federal court.
In rejecting the fraudulent joinder argument, the federal district court outlined several pending factual and legal issues between the parties arising from the dispute over long-term care insurance (LTCI) coverage. The issues include:
- whether the defendant agent's relationship with the insurance company, Bankers United (Transamerica's predecessor), was "disclosed" to the purchasers, relevant because under Washington Law, joint and several liability applies to agents of undisclosed principals;
- whether written promotional materials on LTCI provided by Bankers United barred a claim for misrepresentation in light of alleged oral misrepresentations by agent at the time of sale regarding dementia care; and
- whether a claim of misrepresentation, for a policy of LTCI sold 18 years ago, is barred by the statute of limitations, or whether there is an issue of fact about whether and when the purchaser knew or should have discovered that benefits would be paid only for "nursing home" facility care.
In Washington, as in many states, state law changed to expressly require LTCI insurers to cover non-nursing home based care; however, the statutory change apprently occured after the effective date of the policy in question.
The federal court order linked above resulted in remand to the state court for further proceedings under Washington law. (Allegations, of course, are not the equivalent of proof.)
Friday, November 14, 2014
The November issue of AARP's Bulletin carries a special Medicare cover story, "Inside the Medicare Strike Force" by Rick Schmitt. The article details recent successes by a Justice Department unit formed in 2007:
"The strike force has grown from a single outpost in Miami in 200 to nine cities, with the support of 40 of the 100 attorneys in the fraud section of the Justice Department. . . . Just this September, some 280 prosecutors and agents from around the country attended a Justice Department workshop in Washington, D.C., to learn the finer points of investigating and prosecuting Medicare cases. Increasingly, the crackdown has the look of a major narcotics operation, complete with electronic surveillance and frequent use of informants and cooperating witnesses. Defendants' assets are now routinely seized before trial. Sentences are being measured in decades; even some older beneficiaries are being prosecuted. Agents are backed by forensic accountaints, health care professionals and data acquisition analysts who have a pipeline to Medicare contractors' billing information."
A side bar to the main feature focuses on Peggy Sposato, describing her as a "fraudster's worst enemy," through use of her data analysis skills to create systematic review of billing records. Her methods successfully trace unlawful Medicare payments. Her career as a fraud buster "began in the mid-1990s after a career as a geriatric nurse."
Wednesday, November 12, 2014
AARP's Research released a new report on saving for retirement: Planning for Health Care Costs in Retirement: A 2014 Survey of 50+ Workers. According to the introduction, the reason AARP did this research was to understand how health care costs factor into retirement planning. This is not only an interesting point, it's an important one and worthy of research.
The key findings for this report show that as far as this issue, the news isn't good. Almost 40% aren't saving for health care costs and a bit over 40% relate they have no plans to do so. Slightly over a quarter of respondents do plan to begin to save...within the next few years.
Why aren't these folks saving? According to the findings, right now it's unaffordable, either because they're currently caring for another or they have other expenses. Although over 60% are saving for health care costs, almost half worried they won't be able to afford health care.
The study also shows a disconnect-between the belief of the need for saving and when the belief translates into action. I thought this finding quite interesting--this group plans to pay their own way when it comes to health care costs, with almost 90% replying that they will not rely on family for help with the costs of health care.
The survey also inquired into retirement readiness. The key findings show results that aren't particularly surprising, with about 75% respondents reporting they are "somewhat confident" while only slightly over 30% being "very confident". Concomitantly, 75% have saved to some extent while 1/3 saved "to a large extent." The full report is available here as a pdf.
Tuesday, November 11, 2014
The October 2014 issue of the American Bar Association's Health Law Section publication, The Health Lawyer, has an interesting lead essay, one that I believe would be useful both for practitioners and law students to read. D. Gary Reed, Associate General Counsel for Humana Inc., argues that there are two distinctly different versions of the Medicare Advantage program of health coverage, the version he believes was intended by Congress and the version "found in pleadings, briefs and court decisions."
Attorney Reed starts with a concise statutory overview of coverage under Medicare Part C, leading to introduction of his central thesis: "Litigants and courts too often depend on prior case law for their understanding of the Medicare statute, rather than on the statute itself."
Reed writes clearly and offers helpful citations. He points out that the Medicare statute is, at best, intimidating to the "uninitiated" and the confusion is made worse by inconsistent use of citations to provisions of the legislative Act, rather than to the United States Code.
He offers an "ABCs of Medicare" followed by a more detailed examination of the subparts of Part C, and describes what it means to "opt out." He outlines his approach to how the Medicare Advantage program is intended to function, using examples to show how he believes courts have gotten it wrong. He argues there is "no such thing as a Medicare Advantage insurance policy." The misconception that there is a "policy," he says, "lulls general practitioners and provider collection counsel into suing for breach of the nonexistent Medicare Advantage insurance policy, instead of pursing the exclusive Medicare appeals process."
Reed contends that "[t]ime and money spent by Medicare Advantage organizations defending litigation driven by these misconceptions diverts resources from caring for aged and disabled Medicare beneficiaries." He says "a contributing factor may be the dearth of authoritative materials -- text books, law review articles, or the like -- that explain and contextualize the program in readily understandable terms."
After reading the article, I ask whether a fair implication arises from the apparently significant numbers of claims being made, even if incorrectly and in the wrong forum. Doesn't that suggest there could be real problems with Medicare Advantage? Reed writes that it is important to understand, and to use available statistics to demonstrate, that "the Medicare appeals process exists and is actually available to Medicare Advantage enrollees." But is Medicare Advantage meeting the real needs of health care service users in this program?
Sunday, November 9, 2014
On November 5, Genworth Financial Inc., a major player in long-term care insurance, announced third-quarter 2014 performance results, reporting a $844 million net loss that flowed from review of the company's long-term care claims. The review required the company to reallocate more than $530 million (pre-tax) to its LTC claim reserves. Obviously that is not the kind of news that shareholders like to hear. But, it would also appear to hold larger implications.
Financial news reporters quickly followed with analysis.
From the Wall Street Journal: "Long-Term-Care Insurance: What Policyholders Should Know," three "takeaways:"
- "A past rate increase doesn't forestall additional hikes down the road."
- "You're unlikely to find a better deal by switching insurers.
- "It may be possible to cut back benefits and still have good coverage."
From Bloomberg News: "Genworth CEO Sees Tough Turnaround from $844 Million Loss," putting the single company's performance into context by pointing out that "larger rivals MetLife Inc. and Prudential Financial Inc. have stopped selling long-term care insurance as results are hurt by near record-low bond yields and higher-than expected claims costs."
Underestimating how long people will live. Underestimating the demand for assistance with activites of daily living. Underestimating how much it costs to cover health care and social care meeds. These are calculation problems not just for the insurance companies but for individuals, families and (if we are at all realistic) governments. Don't we need to stop addressing these issues in silos?
Friday, November 7, 2014
Two challenging topics for many families: how to handle death and intimacy for aging family members. We're probably doing better coming to grips with the need to address death than intimacy. When long-term care is required, involving third-parties, the question of sexual behavior can become more important.
Along that line, Bryan Gruley at Bloomberg News wrote a thoughtful series addressing the social, legal, moral -- and just plain tough -- questions connected to sexual behavior that can arise with older persons in congregate settings.
Bloomberg Visual Data: Elder Care Sex Survey Finds Caregiviers Seeking More Training
The Bloomberg series quotes Albany Law School Professor Evelyn Tenenbaum, a civil rights, health care, and bioethics scholar, citing her article "To Be or to Exist: Standards for Deciding Whether Dementia Patients in Nursing Homes Should Engage in Intimacy, Sex and Adultery" from the Indiana Law Review.
November 7, 2014 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)
Wednesday, November 5, 2014
I recently read an HHS Inspector General report about Medicare paying for HIV drugs ... for the dead....The OIG report, Medicare Paid for HIV Drugs for Deceased Beneficiaries, released on Halloween (shades of trick or treat), is available here as a pdf.
OIG report # OEI-02-11-00172 focuses on HIV drugs and the prompt for the investigation was "ongoing concerns about Medicare paying for drugs and services after a beneficiary has died."
The report found that under the existing policy (which allows this to occur), Medicare continued to pay for HIV drugs for 150 decedents. Medicare cuts off payments "for drugs with dates of service more than 32 days after death [because] CMS's practices allow payment for drugs that do not meet Medicare Part D coverage requirements. Most of these drugs were dispensed by retail pharmacies."
Why just look at HIV drugs because isn't it likely that this continued payment could be occurring beyond just this group of drugs? CMS agrees that "these "findings have implications for all drugs because Medicare processes PDE records for all drugs the same way. Considering the enormous number of Part D drugs, a change in practice would affect all Part D drugs and could result in significant cost savings for the program and for taxpayers."
The OIG report recommends a change in practice to "prevent inappropriate payments for drugs for deceased beneficiaries and lead to cost savings for the program and for taxpayers. CMS concurred with [the OIG] recommendation."
Kurzweil Accelerating Intelligence (Kurzweil AI) reported in their October 21, 2014 news a story on new research, Hidden brain signatures’ of consciousness in vegetative state patients discovered. Here’s the opening paragraph “Scientists in Cambridge, England have found hidden signatures in the brains of people in a vegetative state that point to networks that could support consciousness — even when a patient appears to be unconscious and unresponsive. The study could help doctors identify patients who are aware despite being unable to communicate.”
The Kurzweil AI story includes the article’s abstract a segment of which we’ve included here
Going further, we found that metrics of alpha network efficiency also correlated with the degree of behavioural awareness. Intriguingly, some patients in behaviourally unresponsive vegetative states who demonstrated evidence of covert awareness with functional neuroimaging stood out from this trend: they had alpha networks that were remarkably well preserved and similar to those observed in the controls. Taken together, our findings inform current understanding of disorders of consciousness by highlighting the distinctive brain networks that characterise them. In the significant minority of vegetative patients who follow commands in neuroimaging tests, they point to putative network mechanisms that could support cognitive function and consciousness despite profound behavioural impairment.
Consider how these findings may be introduced in litigation where the patient is diagnosed as PVS, with one party seeking to have life-prolonging procedures removed and another objecting and seeking this test for the patient. Should we take this and other medical advances into consideration when drafting advance directives, especially instructions to our health care agents?
Monday, November 3, 2014
The Ohio Court of Appeals, relying on a Sixth Circuit decision that interpreted Ohio law in Hughes v. McCarthy (2013), has now determined that a wife's purchase of an annuity with funds in excess of her community spouse resource allowance after her husband's admission to a nursing home, was not an improper transfer. The court's ruling permits her husband to qualify for Medicaid coverage for his long-term care without any penalty period.
A key to the court's October 22 ruling in Koenig v. Dungey, 2014 WL 5361644, was recognition that use of $121k of "joint funds" to purchase a five-year, actuarially sound spousal annuity was permitted by the language of federal laws, when the "transfer occurred after institutionalization but preeligibility."
In part, the attempts by some states to block use of annuities to convert at least a portion of marital assets into exempt spousal income, depends on states that have adopted tighter language than the federal law. Along that line, Pennsylvania attorney Kemp Scales shared with me potentially relevant language from the U.S. Supreme Court, when construing the purported effect of one state's attempt to capture proceeds of a tort recovery in order to reimburse the state for its expenditures under Medicaid. In Wos v. E.M.A., 133 S.Ct. 1391, 1400 (2013), the Court rejected application of a state lien, noting the conflict with federal law:
"A [particular state] statute that singles out Medicaid beneficiaries in this manner cannot avoid compliance with the federal anti-lien provision merely by relying upon a connection to an area of traditional state regulation."
In September, a federal district court judge in the case of Wagner v. McCarthy, pending in the Southern district of Ohio, granted preliminary injunctive relief favoring community spouses and prohibited state officials from imposing penalties "due to the transfer of community resources to purchase an actuarily sound anuity for the sole benefit of thier respective community spouse." In granting the injunction, the judge observed "there is little doubt that Plaintiffs will succeed on the merits," citing Hughes v. McCarthy.
In August, a somewhat more complicated Medicaid planning case, involving one spouse's transfer and sale of the couple's home, was argued before the Ohio Supreme Court and in an earlier Elder Law Prof Blog post we linked to the court's recording of the argument. A decision on that case, Estate of Atkinson, is still pending.
Sunday, November 2, 2014
Start your week with a laugh, or at least a smile.
One of the many blogs I read, GeriPal, ran an excellent parody for Halloween that had me howling....with laughter at the author's cleverness. Addressing Unmet Palliative and Geriatric Needs of Zombies is a hysterical must-read. The title gives you an excellent preview. And don't ignore the links in the article to the other sources, especially the one regarding the speed with which the Grim Reaper walks (at least the section on strengths and limitations).
Friday, October 31, 2014
ElderLawGuy Jeff Marshall has an interesting blog post, inspired by a recent visit to his doctor where he was asked whether he wanted a "high dose" flu shot. He hadn't heard of high-dose shots. He demonstrates the same careful approach to this personal decision -- lots of research! -- that he uses with legal analysis for his clients.
But, along the same line, I wonder whether we should be asking related questions of long-term care workers and agencies. In Arizona, where my parents (both age 89) live, I learned that many home-care agencies (at least those not "Medicare-Certified") do not provide their employees with such vaccinations, and indeed such workers are often treated by their agencies as independent contractors, so they may be without employer-sponsored health insurance coverage. Such workers struggle to make ends meet -- and flu shots can seem like a luxury. But those same workers probably need to be immunized to better protect their clients. It may be up to the seniors themselves to be aware of this issue, and to pay for and make arrangements for their aides to get flu shots (of any strength).
What are the rules and practices in your state for immunization of in-home care-providers for the elderly?
I often struggle with how far to go in asking for government regulation of risk-factors; but at a minimum, it seems like families need to make their own cost-benefit analysis on immunization of home-aides.
Wednesday, October 29, 2014
LeadingAge is an organization representing "nonprofit" long-term care providers, including operators of CCRCs, home health agencies, day-care centers, nursing homes, Section 8 public housing, and similar companies. During the recent national meeting of LeadingAge in Nashville, one topic was an "alarming trend" in the growth of the for-profit long-term care sector. As reported in McKnight's, during the conference LeadingAge Chairman David Gehm warned the audience that the for-profit sector is "growing nearly eight times as fast as the nonprofoit sector ... citing figures from investment bank Ziegler." Gehm is reported as pointing to reduced access to affordable capital as as one factor contributing to the pressures on the nonprofit industry. He argued a "vibrant nonprofit long-term care sector benefits the whole country."
On the consumer-cost side of the equation, it does seem that what was once a price differential between the two sectors for cost of care is narrowing. Nonetheless, historically there has been a certain additional trustw0rthiness factor associated with monprofit providers that often gave them an edge in the marketplace. But is that still true?
As my students in my Nonprofit Organizations class come to realize, there is often a difference between "charitable" care and "nonprofit" care. But is the difference between nonprofit care and for-profit care becoming harder to evaluate?
Tuesday, October 28, 2014
The Annual Meeting of the Gerontological Society of America (GSA) will take place on November 5-9 in Washington D.C., bringing together more than 4,000 researchers in an interdisciplinary setting to examine cutting edge issues in science, health care, social care, and governance, including related legal issues. The conference draws many from around the world, including my friend Roger O'Sullivan from the Centre for Ageing Research and Development in Ireland (CARDI). There are more than 400 sessions to choose from!
By the way, GSA has a very useful Facebook page, chock full of links to latest research and scientific developments.
Monday, October 27, 2014
Has anyone else noticed an uptick in eye-catching articles from the Washington Post? Maybe it it just that they are writing about things I'm interested in, but I also notice that I'm getting more recommendations from readers, based on Post pieces. Nice to see this resurgence in a traditional news source.
Along that line, the Washington Post has been running a series on the "Business of Dying," looking at hospice and finding lots of areas for concern. Sunday's piece focuses on the inconsistencies among hospice providers, with gaps in services that may be hard for families to respond to, especially in the midst of end-of-life trauma.
The Washington Post has now published on line an interactive "Consumer Guide to Hospice," co- written by Dan Keating and Shelly Tan. You can search by state or by provider -- and it is free!