Wednesday, July 27, 2016
Georgetown University's American Criminal Law Review recently hosted a symposium on health care fraud and one of the articles to come out of that program is by University of Alabama Law School Adjunct Professor James F. Barger, Jr. His article uses the 2013 criminal case of U.S. v. Kolodesh, which resulted in a "guilty verdict on all thirty five counts," to examine "the general trend of Medicare Hospice fraud enforcement actions." The author reports:
The vast majority of False Claims Act hospice cases in which the United States has intervened have settled in favor of the United States without consideration by a jury, and every criminal hospice fraud prosecution by the United States to date has resulted in a guilty plea or a conviction by jury. Every such case—whether civil or criminal—was initiated by a whistleblower under the public-private partnership of the False Claims Act.
The FCA’s whistleblower provisions have been highly effective at detecting fraud and recovering misappropriated Medicare dollars, but deterrence and prevention remain unattained goals.
The calculated business decision to settle False Claims Act allegations has proven over time to have a neutral-to-positive effect on corporate profitability in the hospice sector. For-profit hospice giants such as SouthernCare and Odyssey, who have paid eight figure settlements, have rebounded quickly and actually gained position over their competitors.....
Nevertheless, while the whistleblower provisions of the False Claims Act have proven extremely effective at discovering hospice fraud and at recovering at least some of the lost Medicare funds, alone the statute has demonstrated very little deterrent effect. Outside of a legislative overhaul of the Medicare Hospice Benefit, the only effective deterrent scheme will be for enforcement officials to supplement their use of the civil False Claims Act with traditional criminal fraud statutes. For this to work, however, criminal penalties must be imposed not only on the relatively small-scale players, like Matthew Kolodesh and Home Care Hospice, but also on the mega hospice companies and their executives and owners.
For more, read "Life, Death and Medicare Fraud: The Corruption of Hospice and What the Private Public Partnership Under the Federal False Claims Act is Doing About It," published in the 2016 issue of the American Criminal Law Review.
Tuesday, July 26, 2016
The Washington Post published an interesting article reporting on the recent Alzheimer's Association International Conference in Toronto. According to the article,
Two studies looked at how complex work and social engagement counteract the effects of unhealthy diet and cerebrovascular disease on cognition. One found that while a “Western” diet (characterized by red and processed meats, white bread, potatoes, pre-packaged foods, and sweets) is associated with cognitive decline, people who ate such food could offset the negative effects and experienced less cognitive decline if they also had a mentally stimulating lifestyle.
Occupations that afforded the highest levels of protections included lawyer, teacher, social worker, engineer and doctor; the fewest protections were seen among people who held jobs such as laborer, cashier, grocery shelf stocker, and machine operator.
“You can never totally forget about the importance of a good diet, but in terms of your risk of dementia, you are better able to accommodate some of the brain damage that is associated with consuming this kind of (unhealthy) diet,” said Matthew Parrott, a post-doctoral fellow at the Rotman Research Institute in Toronto, who presented the study.
In another study, researchers found that people with increased white matter hyperintensities (WMHs) – white spots that appear on brain scans and are commonly associated with Alzheimer’s and cognitive decline – were able to better tolerate WMH-related damage if they worked primarily with other people rather than with things or data.
For more of the intriguing findings, read "Complex Jobs and Social Ties Appear to Help Ward Off Alzheimer's, New Research Shows."
Monday, July 25, 2016
The answer might surprise you. It turns out that the older the person, the less the person spends Kaiser Family Foundation reports in a recently released Medicare data note. Medicare Spending at the End of Life: A Snapshot of Beneficiaries Who Died in 2014 and the Cost of Their Care was published July 14, 2016.
Of the 2.6 million people who died in the U.S. in 2014, 2.1 million, or eight out of 10, were people on Medicare, making Medicare the largest insurer of medical care provided at the end of life. Spending on Medicare beneficiaries in their last year of life accounts for about 25% of total Medicare spending on beneficiaries age 65 or older. The fact that a disproportionate share of Medicare spending goes to beneficiaries at the end of life is not surprising given that many have serious illnesses or multiple chronic conditions and often use costly services, including inpatient hospitalizations, post-acute care, and hospice, in the year leading up to their death. (footnotes omitted)
The authors examine the data on a number of points, with explanations and corresponding charts. Among their findings
Our analysis shows that Medicare per capita spending for beneficiaries in traditional Medicare who died at some point in 2014 was substantially higher than for those who lived the entire year, as might be expected. It also shows that Medicare per capita spending among beneficiaries over age 65 who die in a given year declines steadily with age. Per capita spending for inpatient services is lower among decedents in their eighties, nineties, and older than for decedents in their late sixties and seventies, while spending is higher for hospice care among older decedents. These results suggest that providers, patients, and their families may be inclined to be more aggressive in treating younger seniors compared to older seniors, perhaps because there is a greater expectation for positive outcomes among those with a longer life expectancy, even those who are seriously ill.
In addition, we find that total spending on people who die in a given year accounts for a relatively small and declining share of traditional Medicare spending. This reduction is likely due to a combination of factors, including: growth in the number of traditional Medicare beneficiaries overall as the baby boom generation ages on to Medicare, which means a younger, healthier beneficiary population, on average; gains in life expectancy, which means beneficiaries are living longer and dying at older ages; lower average per capita spending on older decedents compared to younger decedents; slower growth in the rate of annual per capita spending for decedents than survivors, and a slight decline between 2000 and 2014 in the share of beneficiaries in traditional Medicare who died at some point in each year.
The report is also available as a pdf here.
Last week, Lancaster Pennsylvania was host to the 19th Annual Elder Law Institute, co-sponsored by the Pennsylvania Bar Institute and the Pennsylvania Bar Association's Elder Law Section. As the image of the two, fat volumes of course materials demonstrates, there was a lot of content for participants to digest. More than 400 professionals attended,not counting walk-ins. (And yes, the course materials will be available for purchase eventually, from the PBI catalog here.)
I had the privilege of welcoming two new speakers to the Pennsylvania conference, Stephen J. Maag, J.D., Director of Residential Communities for LeadingAge and Brad C. Breeding, President of My LifeSite. Both speakers addressed options available for senior living, and focused on trends affecting Continuing Care Retirement Communities (CCRCs), now also known as Life Plan Communities.
Steve noted that with close to 2,000 communities across the nation identifying under the CCRC or Life Plan label, a majority are "still" nonprofit, especially in so-called "Type A" operations, but that there is clearly a trend in the direction of change to "for profit" ownership or management. Communities are coping with what he termed "unprecedented" change on many fronts, including changing consumer demographics, the impact of health care reform, and use of technology that can affect or delay timing of decisions to move into a Life Plan Community.
Brad outlined the development of his company as a site for comparative information for consumers considering CCRC or Life Plan communities. The company has a data bank with detailed, comparative information on over 400 communities, offering consumers a fee-paid option of getting side-by-side statistics on contract options, pricing, services available and more. But he also said that collecting the information is not easy, as some state regulators, including Pennsylvania, do not "share" information in a transparent way. Remember Medicare.gov's Nursing Home Compare? Brad's company is working to provide consumers with comparative information beyond that narrow focus on skilled nursing care. One of the hot topics Brad identified is the extent to which consumers can use "long-term care insurance" in the CCRC setting, and we all discussed whether such insurance should be paying a pro-rata share of entrance fees, especially in Type A life-care contracts.
My special thanks to Steve and Brad for traveling from D.C. and North Carolina, respectively, to share their knowledge and predictions.
Thursday, July 21, 2016
The National Academy of Medicine (NAM) held a meeting in late May, 2016 to update progress since the release of the major report on Dying in America. NAM "hosted “Assessing Progress in End-of-Life and Serious Illness Care,” a private working meeting for stakeholders to assess progress since the September 2014 release of Dying in America: Improving Quality and Honoring Individual Preferences Near the End of Life." The meeting recap is available here. The recap includes transcripts of remarks and discussions as well as slides if used by presenters. The focus of the day was on 5 topics that included "(1) delivery of person-centered, family-oriented care; (2) clinician-patient communication and advance care planning; (3) professional education and engagement; (4) policies and payment systems; and (5) public education and engagement." After breakout sessions,"participants generated 3-5 top priority action items in each area .... [which] will inform the strategic planning of a new Roundtable on Quality Care for People with Serious Illness at the National Academies of Sciences, Engineering, and Medicine (the Academies)."
Wednesday, July 20, 2016
I wanted to make sure you didn't miss these developments.
First, Colorado voters in November may see a ballot initiative on physician-aided dying. Proponents are collecting signatures according to an article in the Denver Post, Right-to-die initiative headed for Colorado’s November ballot. It's not a slam-dunk however. The article notes that there is opposition to the proponents efforts to place the initiative on the ballot. Proposed legislation failed previously. Stay tuned.
Second, in case you missed it, on June 30, 2016, the New Mexico Supreme Court issued its ruling in Morris v. Brandenburg, a physician-aided dying case that has been making its way through the appeals process. The court held "we decline to hold that there is an absolute and fundamental constitutional right to a physician’s aid in dying and conclude that Section 30-2-4 is not unconstitutional on its face or as applied to Petitioners in this case." The court relied heavily on the U.S. Supreme Court opinion in Washington v. Glucksberg and found no specific reasons under the NM Constitution to depart from that precedent since physician-aided dying is not a fundamental right. Here's an excerpt from the opinion:
New Mexico, like the rest of the nation, has historically sought to deter suicides and to punish those who assist with suicide, with limited exceptions in the HCDA and the Pain Relief Act. However, these exceptions occurred as a result of debates in the legislative and executive branches of government, and only because of carefully drafted definitions and safeguards, which incidentally are consistent with the safeguards urged by Petitioners. Numerous examples of such definitions and safeguards exist in the UHCDA. In addition to those previously identified in paragraph 35 of this opinion, the following reflect other safeguards relevant to our analysis... These and other provisions of the UHCDA further many of the government interests recognized by the Glucksberg Court as unquestionably legitimate, and which made Washington’s ban on physician aid in dying reasonably related to their promotion and protection…Indeed, if such exceptions and carve-outs to the historical national public policy of deterring suicide properly exist, they are certainly borne of the legislature and not the judiciary.
A summary of the opinion appeared in the July 13, 2016 eBulletin (full disclosure-I'm one of the editors).
Sunday, July 17, 2016
Do alarms lead nurses in SNFs to interact less with residents? Do the alarms help prevent falls? According to a New York Times article from July 2, 2016, there is a movement away from "things" to help with falls and toward an emphasis on human care. Nursing Homes Phasing Out Alarms to Reduce Falls explains there is "a nationwide movement to phase out personal alarms and other long-used fall prevention measures in favor of more proactive, attentive care. Without alarms, nurses have to better learn residents' routines and accommodate their needs before they try to stand up and do it themselves." Over time prevention moved from restraints to alarms, floor mats, etc. and now prevention is moving from those to personal attention. This change is based on " a growing body of evidence indicates alarms and other measures, such as fall mats and lowered beds, do little to prevent falls and can instead contribute to falls by startling residents, creating an uneven floor surface and instilling complacency in staff."
According to the article there are those who are still using alarms and it will take some time for the change to be more widespread. As one expert noted in the article, using an alarm doesn't prevent a fall. "Going alarm-free isn't yet possible for every nursing home, but it's generally becoming a best practice as nursing facilities work to create the most home-like setting for people who live there, according to John Sauer, executive director of LeadingAge Wisconsin, a network of nonprofit long-term care organizations." As one expert noted in the article, using an alarm doesn't prevent a fall.
It seems that more personal care will be a great thing-but will the facilities have enough staff to help residents? We'll have to wait and see...
Tuesday, July 12, 2016
Stetson Law (full disclosure-my school) offers a new webinar on Tuesday July 19 at noon edt. This first Hot Topics in Elder Law webinar covers the subject of nursing home resident discharge. The Right or Wrong Way? Involuntary Discharge of Nursing Home Residents is a 90 minute webinar. Here is a description about the webinar
A recent AP story suggested that "Nursing homes are increasingly evicting their most challenging residents." Nursing home owners assert that the homes are following the discharge rules and more importantly protecting vulnerable adults from violent residents. This interactive debate will feature advocates from both sides of the issue.
Moderated by Professor Roberta K. Flowers, the debate will feature Eric Carlson, directing attorney of Justice in Aging in Los Angeles, California, and Sheila Nicholson, who specializes in nursing home defense and is a partner at Quintairos, Prieto, Wood & Boyer P.A., in Tampa, Florida.
Registration information is available here.
Monday, July 11, 2016
JAMA Internal Medicine ran an article about a study concerning quality of care in end of life, looking specifically at the illnesses. Quality of End-of-Life Care Provided to Patients With Different Serious Illnesses was published on June 26, 2016. According to the abstract, "[e]fforts to improve end-of-life care have focused primarily on patients with cancer. High-quality end-of-life care is also critical for patients with other illnesses." The authors wanted "[t]o compare patterns of end-of-life care and family-rated quality of care for patients dying with different serious illnesses." The study offers several findings, including:
In a large national cohort of nearly all patients dying in VA inpatient facilities, we observed important differences in the end-of-life care received by individuals with different illnesses. Overall, we found that diagnosis was significantly associated with the quality of end-of-life care as measured both by family surveys and by several established measures of quality of end-of-life care. Patients with end-organ failure and frailty generally received lower-quality end-of-life care than did patients with cancer or dementia. (citations omitted).
After discussing their findings, the authors conclude
While there is room for improvement in end-of-life care across all diagnoses, family-reported quality of end-of-life care was significantly better for patients with cancer and those with dementia than for patients with ESRD, cardiopulmonary failure, or frailty. This quality advantage was mediated by palliative care consultation, do-not-resuscitate orders, and setting of death. Increasing access to palliative care and increasing the rates of goals of care discussions that address code status and preferred setting of death, particularly for patients with end-organ failure and frailty, may improve the quality of end-of-life care for Americans dying with these conditions.
The article is free and is available here.
Sunday, July 10, 2016
In early June, the Urban Institute released a brief that examines whether Catastrophic Insurance Improve Financing for Long-Term Services and Supports. The abstract explains
A catastrophic insurance program could improve the way long-term services and supports are financed. The program would require enrollees who need care to wait a few years before they could collect benefits, but then it would provide those benefits as long as necessary. Our modeling results show that such a program could reduce Medicaid spending and provide financial relief to hard-pressed states. It could also reduce out-of-pocket spending for families facing catastrophic costs and fund new services and supports. By setting aside funds to cover future spending, a catastrophic insurance program could also raise national saving.
As we well know, paying for long-term care is a challenge for many. As the authors note, "[c]urrently, most people with LTSS needs rely mostly on unpaid family caregivers for assistance. If they need more help, they generally pay out of pocket until they exhaust their financial resources and then turn to Medicaid. New financing approaches could combine public insurance for catastrophic LTSS costs with initiatives to promote private long-term care coverage for other expenses. Our projections suggest that these options could significantly reduce Medicaid spending and provide better financial protection for older people who develop LTSS needs."
Looking at the ways long-term care is financed by many, the authors consider whether an insurance model might be the answer
New LTSS insurance programs could provide better financial protection to people with disabilities; improve the care they receive; and reduce Medicaid costs, which are creating financial problems for many state governments. By setting aside funds today to cover future LTSS spending, new insurance programs could raise national saving. And they could provide families with stronger incentives to save by reducing reliance on Medicaid, which discourages saving because it only pays benefits to people with virtually no wealth outside of their home. The effectiveness of any new insurance program, of course, depends on its particular features, such as eligibility requirements, the size of the daily benefit, and the financing mechanism.
The authors examine a few models to gauge their workability and conclude
An LTSS catastrophic insurance program that requires enrollees with LTSS needs to wait a few years before collecting benefits but then extends those benefits as long as necessary could substantially improve the way LTSS needs are financed in the United States. Such a program could reduce Medicaid spending, providing financial relief to hard-pressed states. It would also reduce out-of-pocket spending for families facing catastrophic costs and fund new services for older adults with LTSS needs, although these impacts would be somewhat smaller than those from a similar-sized program that provided front-end, but time-limited, benefits. By setting aside funds today to cover future LTSS spending, a new catastrophic insurance program could raise national saving. And it could provide families with stronger incentives to save by reducing reliance on Medicaid, which discourages saving because it only pays benefits to people with virtually no wealth outside of their home.
Program details need further analysis. We modeled only a few options, and alternative designs could have different effects. For example, a new insurance program could provide larger daily benefits, which would reduce Medicaid and out-of-pocket spending more than the plan we modeled but would also require more funding. Or new programs could require enrollees to wait even longer to receive benefits than the program we modeled, which would offset less Medicaid and out-of-pocket spending but cost less. Our research is only the first step in the analysis required to design new LTSS financing programs, but it illustrates the potential power of our simulation tool in demonstrating how new options can interact with existing programs.
Thursday, July 7, 2016
Our good friend and prolific author, Professor Marshall Kapp, let us know about his most recent article, Speculating About the Impact of Healthcare Industry Consolidation on Long-Term Services and Supports. The article is published as the lead article in volume 25, issue 2 of the Annals of Health Law. Here is the abstract of the article
The current health industry consolidation movement promises to exert an important and powerful array of effects on numerous different population groups seeking or receiving health services in a variety of different health care settings. Particularly regarding the potential impact of health industry consolidation on individuals contemplating, seeking, or obtaining long-term services and supports (LTSS), little is yet known but much may be plausibly speculated. This article joins in that speculation, but attempts to advance the constructive consideration of the topic by offering some suggestions for a research agenda to investigate specific empirical questions about consolidation’s impact on LTSS and thereby generate evidence and knowledge that can be used to either reduce or prevent negative aspects of consolidation for LTSS, on one hand, or foster and facilitate the achievement of positive effects, on the other.
Professor Kapp concludes:
The current, and probably continuing, consolidation of health services providers, producers, and sellers of healthcare products, as well as third-party payers for health services and products, inevitably will exert a variety of impacts on healthcare consumers generally and within specific contexts. Actual and potential consumers of LTSS, as well as their families, are likely to be affected in unique ways, differing to a large extent depending on the way that respective groups of consumers now finance their own LTSS. Little significant data is available yet regarding such effects, but speculation nonetheless abounds. This article joins in this basically uninformed but plausible speculation exercise but, I hope, adds constructively to the discussion by suggesting the rudiments of a health services research agenda that leads eventually to evidence-informed public policy making and private sector conduct that optimizes consolidation’s impact on consumers’ interests in access to, affordability of, and quality received in the realm of LTSS.
Thanks Marshall for letting us know and congratulations on the publication!
Wednesday, July 6, 2016
In New Jersey, ORANJ is an organization for residents of "continuing care retirement communities" (or CCRCs, also sometimes known as "Life Plan Communities," following a LeadingAge marketing study and plan announced in November 2015). Founded in May 1991, members recently celebrated their 25th anniversary. In a summer 2016 newsletter, called, appropriately ORANJ Tree, residents from three communities reported on major changes in ownership of their facilities, and how such changes can affect community moral and future prospects. The CCRCs discussed were:
- 2016: Cadbury at Cherry Hill (reporting a new ownership is part of a conversion from nonprofit status to for-profit)
- 2016: Franciscan Oaks
- 2013: Fountains at Cedar Parke
In my observation, these New Jersey transactions, especially a conversion from nonprofit to for-profit, are part of a larger, national picture of communities struggling for identity in a competitive senior living market.
Tuesday, July 5, 2016
Modern Healthcare ran an article that got me thinking about whether we will see mandatory retirement being applied to the certain doctors. More hospitals screen aging surgeons to make sure their skills are still sharp was published on June 11, 2016. The article starts with relating the story of one facility and a 79 year old surgeon returning to work after some health problems. The facility had concerns but the article notes, "[t]hey had few tools at their disposal, though. Hospital policy limited interventions to clinicians who had made medical mistakes. [The surgeon] had never had an adverse event with a patient under his care." The chief of surgery at this hospital suggested a program from "Maryland that provides cognitive and physical examinations for aging surgeons."
We all know that conversations with someone about their diminished abilities are very difficult to have. The article offers a nod to that. Everyone is living longer, even doctors, and longevity along with "[a]dvances in medicine, personal wellness and public health, along with the desire to preserve a sense of purpose and their lifelong identity, have led many to work well beyond traditional retirement age." Some facilities are developing policies to evaluate their continued practice of medicine, "policies that require clinicians of a certain age to undergo physical, cognitive and clinical testing. Those programs have been met with ire by career practitioners, who argue that age is just a number. Doctors—no matter what their age—already must renew their medical licenses at regular intervals with state medical boards." Critics note that renewals of licenses don't test "for age-related cognitive and physical decline that could harm the quality of care provided to patients." (does this debate sound familiar to anyone?)
The article then moves into a discussion of the ADEA and mandatory retirement and whether mandatory retirement should be applied to doctors. The American Medical Association (AMA) issued a report in 2015 on age-related declines with clinicians and is working on the beginnings of "research opportunities to inform preliminary guidelines for assessing senior and late-career physicians." This year the American College of Surgeons (ACS) "recommended that surgical specialists undergo voluntary and confidential baseline physical examinations at regular intervals starting between ages 65 and 70."
The article notes that some health care facilities have instituted their own requirements. "The policies vary in terms of the ages at which clinicians begin screening and what the exams require. Some call for clinicians to complete clinical skill and physical health screening every couple of years. Others require a more controversial cognitive test, which the AMA is leery of supporting." There is no uniformity yet with these programs. As far as the doctor at the beginning of the article? He did go through a program and passed. The surgeon "did recently decide to shift some of his responsibilities and now spends more time on training and education with another physician taking the role of chief of vascular surgery. [The surgeon] also became an advocate who encourages his colleagues to consider it."
Special and Supplemental Needs Trust To Be Highlighted At July 21-22 Elder Law Institute in Pennsylvania
In Pennsylvania each summer, one of the "must attend" events for elder law attorneys is the annual 2-day Elder Law Institute sponsored by the Pennsylvania Bar Institute. This year the program, in its 19th year, will take place on July 21-22. It's as much a brainstorming and strategic-thinking opportunity as it is a continuing legal education event. Every year a guest speaker highlights a "hot topic," and this year that speaker is Howard Krooks, CELA, CAP from Boca Raton, Florida. He will offer four sessions exploring Special Needs Trusts (SNTs), including an overview, drafting tips, funding rules and administration, including distributions and terminations.
Two of the most popular parts of the Institute occur at the beginning and the end, with Elder Law gurus Mariel Hazen and Rob Clofine kicking it off with their "Year in Review," covering the latest in cases, rule changes and pending developments on both a federal and state level. The solid informational bookend that closes the Institute is a candid Q & A session with officials from the Department of Human Services on how they look at legal issues affected by state Medicaid rules -- and this year that session is aptly titled "Dancing with the DHS Stars."
I admit I have missed this program -- but only twice -- and last year I felt the absence keenly, as I never quite felt "caught up" on the latest issues. So I'll be there, taking notes and even hosting a couple of sessions myself, one on the latest trends in senior housing including CCRCs, and a fun one with Dennis Pappas (and star "actor" Stan Vasiliadis) on ethics questions.
Here is a link to pricing and registration information. Just two weeks away!
July 5, 2016 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)
We know anyone can be a victim of elder abuse. We also know anyone can be a perpetrator. With that in mind, the results of a study published in the Annals of Internal Medicine might be surprising to you.... or not. The study found that in about 20% of the cases, the perpetrator was another resident. The Prevalence of Resident-to-Resident Elder Mistreatment in Nursing HomesResident-to-Resident Elder Mistreatment in Nursing Homes explained that "[r]esident-to-resident elder mistreatment (R-REM) in nursing homes can cause physical and psychological injury and death, yet its prevalence remains unknown." The full article requires a subscription but the summary available offers this information:
Results: 407 of 2011 residents experienced at least 1 R-REM event; the total 1-month prevalence was 20.2% (95% CI, 18.1% to 22.5%). The most common forms were verbal (9.1% [CI, 7.7% to 10.8%]), other (such as invasion of privacy or menacing gestures) (5.3% [CI, 4.4% to 6.4%]), physical (5.2% [CI, 4.1% to 6.5%]), and sexual (0.6% [CI, 0.3% to 1.1%]). Several clinical and contextual factors (for example, lower versus severe levels of cognitive impairment, residing on a dementia unit, and higher nurse aide caseload) were associated with higher estimated rates of R-REM...
Conclusion: R-REM in nursing homes is highly prevalent. Verbal R-REM is most common, but physical mistreatment also occurs frequently. Because R-REM can cause injury or death, strategies are urgently needed to better understand its causes so that prevention strategies can be developed.
There was a webinar on the topic earlier in the spring. Slides from the webinar are available here. There is also an abstract from the 2014 report available on the National Criminal Justice Reference Service and the report is here.
Thursday, June 30, 2016
Traditional Medicare Versus Private Insurance: How Spending, Volume, And Price Change At Age Sixty-Five , an article published in Health Affairs, discusses one topic that we hear periodically-that is, raising the age of Medicare eligibility from 65 to 67. The abstract explains:
To slow the growth of Medicare spending, some policy makers have advocated raising the Medicare eligibility age from the current sixty-five years to sixty-seven years. For the majority of affected adults, this would delay entry into Medicare and increase the time they are covered by private insurance. Despite its policy importance, little is known about how such a change would affect national health care spending, which is the sum of health care spending for all consumers and payers—including governments. We examined how spending differed between Medicare and private insurance using longitudinal data on imaging and procedures for a national cohort of individuals who switched from private insurance to Medicare at age sixty-five. Using a regression discontinuity design, we found that spending fell by $38.56 per beneficiary per quarter—or 32.4 percent—upon entry into Medicare at age sixty-five. In contrast, we found no changes in the volume of services at age sixty-five. For the previously insured, entry into Medicare led to a large drop in spending driven by lower provider prices, which may reflect Medicare’s purchasing power as a large insurer. These findings imply that increasing the Medicare eligibility age may raise national health care spending by replacing Medicare coverage with private insurance, which pays higher provider prices than Medicare does.
A subscription is required to access the full article.
Wednesday, June 29, 2016
Last week Kaiser Health News (KHN) ran an update about Medicare's Observation Status, reminding readers that the requirements of the NOTICE Act go into effect on August 6, 2016. Medicare Releases Draft Proposal For Patient Observation Notice explains that CMS has asked for comments on the draft notice it created for hospitals to use to explain observation status to patients. One expert quoted in the KHN article "said the notice is written for a 12th-grade reading level, even though most consumer materials aim for no more than an eighth-grade level. It 'assumes some health insurance knowledge that we are fairly certain most people don’t have.'" Others interviewed for the article expressed concerns about the draft of the notice and whether it goes far enough. A sample of the draft notice can be viewed in the article. The comment period closed on June 17, 2016 and the article notes that the final CMS notice isn't expected until shortly before the law becomes effective.
Sunday, June 26, 2016
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.
Friday, June 24, 2016
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.
Thursday, June 23, 2016
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.