Monday, April 14, 2014
New Report Finds That Spouses Who Are Caregivers Are More Likely Than Other Caregivers to Perform Demanding Medical/Nursing Tasks
The United Hospital Fund and AARP Public Policy Institute has issued a report today showing that spouses who are caregivers not only perform many of the tasks that health care professionals do—a range of medical/nursing tasks including medication management, wound care, using meters and monitors, and more—but they are significantly more likely to do so than other family caregivers, who are mostly adult children. Nearly two-thirds of spouses who are family caregivers performed such tasks (65 percent), compared to 42 percent of nonspousal caregivers.
Friday, April 11, 2014
It is Friday and time for a catch-up on recent law review articles. I posted last month on Memphis Professor Donna Harkness' article on filial support laws, but she is not the only one with recent publications analyzing the seemingly renewed interest in enforcement of such laws around the country and the world. Here are highlights from recent comments and articles (minus those pesky footnotes):
"The Parent Trap: Health Care & Retirement Corporation of America v. Pittas, How it Reinforced Filial Responsibility Laws and Whether Filial Responsibility Laws Can Really Make you Pay," Comment by Texas-Tech Law Student Mari Park for the Estate Planning & Community Property Law Journal (Summer 2013):
"Texas should join the other twenty-eight states that already have a filial responsibility statute. Placing the duty of support on able family members first is a centuries-old obligation that has managed to survive into the present day despite opposition. While filial responsibility may seem harsh, it is simply making families care for each other. With the number of indigent elderly quickly rising, long-term care costs are likely affecting many families. Instead of ignoring the issue and hoping the government will shoulder this burden, maybe it is time for families to step up and take responsibility."
"Filial Responsibility: Breaking the Backbone of Today's Modern Long Term Care System," Article by Elder Law Specialist Twyla Sketchley and Florida State Law Student Carter McMillan for the St. Thomas Law Review (Fall 2013):
"The costs of long term care are staggering and a solution must be found for this crisis. However, mandatory filial responsibility is not the answer. Enforcement of filial responsibility in the modern long term care system is unsustainable and ineffective. Filial responsibility has been recognized since the Great Depression as ineffective in providing for the needs of elders. Scholars have recognized that families provide care, not out of legal obligation, but personal moral obligation, and do so at great sacrifice. Enforcement of filial responsibility in today's long term care system burdens those who are the least able to shoulder the additional burden. Based on the value and the consistency of the care provided by informal caregivers, informal caregiving is the one piece of the long term care system that is working. Therefore, the solutions to the long term care financing system must encourage and support the informal caregiving system[,] not add additional, unsustainable burdens."
"Intestate Succession for Indigent Parents: A Modest Proposal for Reform," Comment by Toledo Law Student Matthew Boehringer for the University of Toledo Law Review (Fall 2013):
"Filial support statutes have already laid the groundwork and rationale behind adults supporting their dependents and should provide a convenient outlet for a government looking to reduce spending. Society will inevitably find more parents dependent on support from their children. Consequently, more of the elderly population will find that avenue of support estopped should that child die and without a means of familial support. A modest reform of intestacy laws will address this situation and smooth over inconsistencies between different applications of the same purpose. The burden on the estate should not be excessive because the decedent was already providing for the elderly parent before death. Moreover, probate courts will already know the facts of the case and, thus, are in the best position to provide an equitable treatment for all parties dependent on the decedent. This modest proposal offers little harm but much benefit for some of the weakest of society."
In addition to the above articles addressing obligations that may run from adult child to parent, an article on "Who Pays for the 'Boomerang Generation?' A Legal Perspective on Financial Support For Young Adults," by Rutgers-Camden Law Professor Sally Goldfarb for the Harvard Journal of Law and Gender, analyzes the practical obligations assumed by many single parents, often women, to support adult children who are not yet self-sustaining. Professor Goldfarb observes that a "financially struggling single mother who provides support for her adult child is at heightened risk of becoming an impoverished elderly woman." She proposes:
"Instead of urging mothers to 'just say no' to financially dependent adult children, a better approach would be to ensure that the burden of financial support for young adults is distributed more equitably.... Divorced, separated, and never-married mothers of financially dependent young adults are in a position of derivative dependency. If they cut their financial ties to their adult children, they jeopardize the children's financial security. If they don't cut those ties, they jeopardize their own. A solution that safeguards the well-being of both mothers and young adults is urgently needed. In the absence of widely available public programs to meet the needs of young adults, the most obvious solution is to divide the cost of supporting them fairly between both parents...[as she explains in greater detail]."
Don't hesitate to write and let me know if I have missed your recent article addressing filial support laws or related concepts.
Wednesday, April 9, 2014
For the 11th consecutive year, Genworth has released its national survey results for long-term care costs, including statistics for nursing home care, assisted living facility care, adult day health care, home health aide services, and homemaker services. The survey draws upon information from more than 14,800 providers in 440 regions nationwide.
Genworth's 2014 information is offered in several formats, including:
- Key Findings
- Full Report
- State-by-State Statistics (with an interactive map, including search-by-region function)
In addition, and not surprising given that Genworth is an insurance company, the website offers planning guidelines, explaining the role for long-term care insurance.
Monday, April 7, 2014
Causation Proof Needed for Breach of Contract Claims Against "Responsible Parties" in Nursing Home Cases
We have another interesting appellate decision from Connecticut on the question of personal liability of an individual who signed an agreement as a "responsible party" when admitting his parent to a nursing home. The opinion is in Meadowbrook Center, Inc. v. Buchman, issued by the Connecticut Court of Appeals with a decision date of April 8, 2014.
The majority of the three judge panel concludes that the son who signed the agreement cannot be held liable, based on the evidence -- or rather lack of evidence -- in the record. Although the evidence establishes the son failed to provide all information requested by the state Medicaid department following his mother's application for Medicaid, and therefore breached duties he assumed as a "responsible party" under Section IV of the nursing home agreement, the majority concludes he cannot be held liable because there "is no evidence in the record...indicating that, had the defendant [son] complied with his obligations under the agreement, [the nursing home] would have received any Medicaid payments."
In other words, the nursing home proved breach, but not causation of damages, even though "the parties stipulated...that if the department granted Medicaid benefits to the defendant's mother, the department would have paid the facility $47,561.18." The ruling focuses on that "if," noting:
"The testimonial evidence submitted to the court demonstrated, on the one hand, that submitting the proper information to the department merely triggered a review of the resident's eligibility and, on the other hand, the submission of such information was not a guarantee of approval to receive such benefits.... [A]n eligibility services supervisor at the department...testified that the department could not determine whether an applicant qualified for Medicaid absent a review of the applicant's financial information, which was not furnished to the department in the present case. As the defendant notes in his appellate brief, the plaintiff did not ask Leveque 'if, based upon the defendant's testimony regarding the assets maintained by [his mother], he had an opinion regarding whether ... [she] would have qualified for [such] benefits.' In addition, the record before us does not indicate that the plaintiff was prevented from presenting the proper financial documentation, expert testimony, or other evidence that would have otherwise established the resident's likelihood of approval, nor has the plaintiff in this appeal directed our attention to any such evidence."
There is a complicated history to third-party liability issues in nursing home contracts, especially in Connecticut. As readers of our Blog may recall, last year the Connecticut Supreme Court declined to hold a signing family member liable for costs of the parent's care, where that individual did not have a Power of Attorney or other authority to apply for Medicaid. See "Nursing Home Contracts Revisited: The Nutmeg State Adds Spice," commenting on Aaron Manor, Inc. v. Irving, 57 A.3d 342 (Conn. 2013). Further, as we note in that post, Connecticut made significant changes to its Medicaid laws effective in October 2013, as a result of a series of nursing home cases involving third-parties. In certain circumstances, Connecticut now seeks to impose statutory liability on individuals who are either transferors or transferees, connected to the resident's ineligibility for Medicaid because of disqualifying transfers.
The Meadowbrook decision is also well worth reading for anyone interested in the related but separate concepts of contract law and promissory estoppel.
Further, in a separate concurring opinion, a third judge concludes that the nursing home agreement should not be construed as imposing liability unless the "responsible party" has been shown to have misappropriated the resident's resources, because without that personal fault, the responsible party agreement becomes a "guaranty," prohibited by federal Medicaid law. The majority, however, "strongly" rejects that analysis. We'll keep our eyes open to see if the Meadowbrook case goes to the Connecticut Supreme Court.
When I first began analyzing "responsible party" liability in nursing home contracts, I became convinced the contracts drafted by many facilities created a minefield of problems. In some instances, the providers seem to intentionally blur the lines of responsibility for third-parties. On the one hand, facilities "need" agents to sign for new residents who are often lacking capacity to contract. So the admissions office points to the "no personal liability" language in the agreement signed by the third-party. On the other hand, if something does go wrong with the Medicaid application, that same facility will often be quick to point out that it is the third-party signer's obligation to fix the problem, or face potential personal liability.
The nursing homes, of course, whether for profit 0r nonprofit, are not in the business of providing free care.
The last ten years of litigation have only increased the importance for individuals to understand the significance of nursing home agreements. Individuals may want legal advice from specialists in state Medicaid law before signing the agreement; further they may need to seek legal help again if there is any hiccup in the Medicaid application process. After the Meadowbrook case, I think it is safe to say care facilities will be better prepared to prove causation of damages.
Sunday, April 6, 2014
I was in Washington D.C. over the weekend and stopped by one of my favorite theaters, the Arena Stage. I was hoping to get a ticket for the much talked about play Camp David, but I'm happy to report it was sold out and instead I saw a play I knew nothing about.
Ann Randolph's play, Loveland, is "outrageous." But before you make assumptions, let me suggest the multiple ways the word applies. Loveland includes outrageously funny moments, justifiably outraged anger, and rage-worn poignancy. You are laughing one minute, and wiping away a tear in the next. And Randolph, the playwright and actress, manages to pull all of this off while seated on the north side of an airplane flying east, a spot chosen so that she can have the best views of our National Parks ... and remain close to her mother's ashes.
It is a one woman play -- but not a one character play. The articulation and pacing of the 75 minute show are brilliant. I guarantee you will join in (even if you feel very guilty for doing so) when she teaches you the latest tune for sing-alongs at your parent's nursing home.
Hurry to see it, especially if you want to catch the play in D.C., as Loveland is booked for just one more week at the Arena Stage's newest and most intimate venue, the Kogod Cradle.
Wednesday, April 2, 2014
University of Oklahoma Professor of Law Jonathan Barry Foreman writes on "Supporting the Oldest Old: The Role of Social Insurance, Pensions, and Financial Products," for the Elder Law Journal in 2014.
He points to "longevity risk," defined as the risk of outliving one's retirement savings, as "probably the greatest risk facing current and future retirees" in the U.S. As several recent studies demonstrate, such as those cited on the Elder Law Prof Blog here, here and here, many people are not adequately prepared in terms of finances for retirement.
In responding to this risk, Professor Foreman writes thoughtfully, proposing systemic alternatives, including expansion of Social Security and SSI for "the oldest old." Professor Foreman suggests 90 years of age as the starting point for that category. In addition he proposes greater incentives for public and private employers to promote annuities and other "lifetime income products" as components of employment-based retirement packages.
He concludes with a warning based on our national history of frequently failing to make significant changes in advance of a predictable crisis:
"Social insurance programs like Social Security, Supplemental Security Income, and Medicaid will certainly need to be expanded. Workers will also need to be encouraged to work longer and save more for their eventual retirements, and both workers and retirees should be encouraged to annuitize more of their retirement savings.
While these kinds of solutions seem fairly predictable, the answers to two important policy questions have yet to be decided. First, how much will the government require the oldest old to save earlier in their lives? And second, how much will the government redistribute to benefit the oldest old? Unfortunately, if the history of the Social Security system is any indication, both government mandates and redistribution will be modest, and a significant portion of the oldest old will face their final years with inadequate economic resources."
Reading Professor Foreman's tightly focused paper suggests to me that there is, perhaps, a certain irony to all of this. The irony is that by not embracing systemic change, Americans are engaging in a form of financial roulette, betting we won't live long enough to care about the outcome of our gamble.
Tuesday, April 1, 2014
Washington Post writer Michelle Singletary hosts a column called The Color of Money. Recently she wrote about the importance of talking with your adult children about your preferences and finances "long before a health crisis forces the issue" that may put them in the position of caregivers. At the same time, she acknowledges this conversation isn't easy to start.
For assistance she suggests the book "The Other Talk: A Guide to Talking With Your Adult Children About the Rest of You Life," by author Tim Prosch. To further the conversation, Singletary and Prosch are hosting an on-line dicussion about "The Other Talk" on Thursday, April 24 at noon, Eastern time. Here's the link to the Washington Post forum for the program.
Monday, March 31, 2014
A few weeks ago, I posted the account of one family's struggle to find competent care for aging parents. Eventually they were referred to a team of two women who did provide good care, but who insisted on being paid in cash. I later learned that one person expected an additional "fee" for "managing" the arrangement. The family felt trapped, although the crisis was cut short when the parent died.
More recently, I read another family's story, where a non-family member provided proper senior care in exchange for "cash," and this time the arrangement lasted for several years. Eventually, however, the cared-for-individual's savings were exhausted, and her increasing health needs meant a nursing home was inevitable. But how to apply for Medicaid? Any review of bank records that accompanies a Medicaid application would show large, regular cash withdrawals from the elder's accounts, totaling more than two hundred thousand dollars. With no W-2s or other documentation of the use of that cash, would the state agency treat the transactions as gifts creating ineligibility for Medicaid? Would an affidavit or testimony by a family member be enough to satisfy the agency?
A group of experienced attorneys brainstormed the options in this fact pattern and raised a host of additional practical questions, including why the family had not sought help from an attorney or accountant at the outset of the arrangement. I suspect part of the answer was the family was operating in "survival" mode -- trying to solve a crisis with temporary help -- and failing to realize the potential for it to become long-term. In the meantime, their loved one bonded with the individual caregiver who either would not or could not be paid on the books. One lawyer observed that this fact pattern demonstrates why "Elder Law" needs better visibility and understanding by the public, as elder law attorneys can help prevent this legal nightmare from occurring.
During the brainstorming, someone provided a useful link to "Risks of Hiring Caregivers Under the Table: Why It Can Be Dangerous...." by Melanie Haiken from Caring.com.
For more detailed guidance, IRS Publication 926, the Household Employer's Tax Guide, is remarkably straight forward, if still probably intimidating for the average person.
Friday, March 28, 2014
This semester I'm teaching Contracts, which always provides interesting opportunites to introduce "Elder Law" concerns in a traditional course.
This week I offered a not-so-hypothetical fact pattern, where Grandmother deeds house to Grandchild, in exchange for Grandchild's "promise to care for Grandma for the rest of her life." Whenever I use this hypo, I pick one of a number of reasons the agreement does not work out as planned, such as the individuals don't get along with each other, grandchild gets pregnant or ill, etc. This week's reason was "Grandma needs more specialized care" but cannot afford it because she's given away her primary resource. Grandchild doesn't want to sell the house, now that it is "hers," and she doesn't want to take out a mortgage.
I ask the students to brainstorm Grandmother's options. Almost always, someone suggests Medicaid, and we talk about whether Medicaid will provide adequate assistance and whether there are potential barriers to eligibility for public benefits, such as the five-year look back period.
Students sometimes suggest Grandmother is subject to "undue influence," which if proven would be grounds for potential rescission. Good job! Except that I am usually careful in my hypo not to make Grandchild overtly manipulative. And in truth, many of these arrangements begin more because of the desires of the aging individual, than because of any greed on the part of the younger person. We also explore "incapacity" and "duress" as possible grounds for rescission.
This week, students also suggested "failure of consideration" as grounds for rescission. There is an interesting line of cases, perhaps a hybrid of Property and Contract law, that treats "support deeds" as a specific analysis, potentially justifying relief. Examples include:
- Gilbert v. Rainey, 71 SW. 3d 66 (Ark. Ct. App. 2002), permitting mother to rescind deed for failure of consideration, and admitting mother's parol evidence to show daughter promised life care in exchange for the conveyance of the home, to show that conveyance was not a completed gift;
- Frasher v. Frasher, 249 S.E. 2d 513 (W.Va. 1978), granting cancellation of deed from grandparents to grandchildren, on the grounds that where discord arises between the parties to a "support deed" between an aged grantor and a younger family member, the property should be restored "if it can be done without injustice" to the younger family member.
After class was over, some of my students stopped by to chat, offering variations on the hypothetical, sometimes from examples within their own extended families. In both of the sample cases above, the court attaches special meaning to the concept of "support deeds" going from older to younger generation, but most of the cases along this line are fairly old. The fact that my students were offering modern variations on the fact pattern suggests there may be good reason to revisit this area of the law.
Perhaps any resurgence in this topic is another sign of our "aging" times. So, that leads to my question, does your state recognize failure of consideration, tied to "support deeds," as grounds for rescission of a conveyance?
Thursday, March 27, 2014
- Get a copy of medical records, which every patient has a right to under federal law. These records can provide important information about what happened -- and what might have gone wrong.
- If the patient has died, order a forensic autopsy, which includes toxicology tests. Autopsies -- though not always 100 percent accurate -- are the most reliable means of finding out what happened in an unexpected death. Hospitals do not routinely conduct autopsies, but the family has the right to get one.
- Consider calling an attorney. Be aware that the standards for proving medical malpractice are much higher than most patients expect. Attorneys take few cases because they're expensive to pursue and difficult to win.
Wednesday, March 26, 2014
Tough Question: Evidence Demonstrates Potential for Unsatisfactory Care in Nursing Homes, So Why Expect Better Care at Home?
Howard Gleckman at Forbes writes about the elephant in the room of home and community-based care. Will it really be better than the care in a nursing home?
Hat tip to ElderLawGuy Jeff Marshall for pointing the way to this thoughtful piece.
Perhaps more than most who teach Elder Law, I spend a fair amount of time on provider perspectives on long-term care, examining industry concerns. I've often been struck by a disconnect in communication between lawyers who represent providers and those who represent families and individuals. My impression is there are often important lessons to be learned from "the other side."
Along that line, here is a one minute video from Merit Senior Living, a company that offers administrative services such as management of human resources and payroll for staffing of various forms of senior living. Perhaps some of the lessons that can be learned here are unintentional?
Tuesday, March 25, 2014
On March 4, 2014, the Office of Management and Budget released President Obama’s budget for fiscal year (FY) 2015, which includes provisions related to federal spending and revenues, including Medicare savings. The President’s budget would use federal savings and revenues to reduce the deficit and replace sequestration of Medicare and other federal programs for 2015 through 2024. This brief summarizes the Medicare provisions included in the President’s budget proposal for FY2015.
The President’s FY2015 budget would reduce Medicare spending by more than $400 billion between 2015 and 2024, accounting for about 25 percent of all reductions in federal spending included in the budget. Most of the Medicare provisions in the FY2015 budget are similar to provisions that were included in the Administration’s FY2014 budget proposal. The proposed Medicare spending reductions are projected to extend the solvency of the Medicare Hospital Insurance Trust Fund by approximately five years.
- More than one-third (34%) of the proposed Medicare savings are due to reductions in payments for prescription drugs under Medicare Part B and Part D. The single largest source of Medicare savings would require drug manufacturers to provide Medicaid rebates on prescriptions for Part D Low Income Subsidy enrollees, a proposal which was also included in the President’s FY2014 proposed budget.
- One-third (33%) of the proposed Medicare savings are due to reductions in Medicare payments to providers, most of which are reduced payments to post-acute care providers (Figure 1). The baseline of the proposed budget assumes no reduction in Medicare payments for physician services, relative to current levels, from 2015 through 2024, in contrast to the sustainable growth rate formula (SGR) under current law, which calls for significantly lower physician payments during this 10-year period. The projected cost for adjusting the baseline for this period is $110 billion, plus additional amounts associated with eliminating cuts in 2014.
- About 16 percent of the proposed Medicare savings are due to increases in beneficiary premiums, deductibles and cost-sharing.
Monday, March 24, 2014
Law Professor and Deputy Dean Wendy Lacey has published a comprehensive article detailing challenges that exist in addressing the growing phenomenon of elder abuse, including:
- Lack of a comprehensive, national mandate for safeguard of older adults;
- Lack of innovative legal reforms at the state level;
- Invisibility of our older people;
- Lack of awareness within the community of the prevalence, nature and signs of elder abuse;
- Absence of an international normative framework for protecting the rights of older persons.
All of these points strike a chord for those who work on behalf of victims of abuse in the United States. Of course, the fact that this list is from Professor Lacey's article on "Neglectful to the Point of Cruelty? Elder Abuse and Rights of Older Persons in Australia," published in the Sydney Law Review in March, 2014, does not change the significance of her call for a "collaborative" strategy, "incorporating a rights-based approach to the review and reform" of laws, whether on a state, territorial, national or international basis.
Friday, March 21, 2014
Health Care Reform: Implementation in Minnesota
Friday, October 24, 2014
Hamline University, Saint Paul, Minnesota
The Hamline University Health Law Institute and Hamline Law Review, with the major support of Medica Health Plans, are working together to produce a day-long CLE/CEU Symposium on Friday, October 24, 2014 titled Health Care Reform: Implementation in Minnesota.
The topic of the Symposium is law and policy issues relating to the implementation of health care reform in Minnesota. A key goal of the conference is to address real, live, outstanding, and upcoming challenges.
Call for Papers & Presenters
We are currently seeking proposals for presentations and papers for our Symposium that will examine the outstanding challenges confronting the implementation of healthcare reform. Those interested should submit a CV and a 500-word abstract to email@example.com by April 15, 2014. While the primary focus of your paper need not be Minnesota-specific, please explain the regional relevance of your topic and thesis. Additional information can be found here.
Health Care Providers: ethics consultants and ethics committee members; physicians; nurse practitioners; physician assistants, medical, nursing, and physician assistant students; patient advocates; social workers; chaplains; nurses; case managers; clinical educators; other allied health professionals; quality assurance personnel; and administrators
Lawyers: law review students, law students, law faculty, health law practitioners, nursing home and hospital attorneys, elder law practitioners, trusts and estates practitioners, and health care facility risk managers
Government: Minnesota and federal regulators and policymakers
Academics: professors of bioethics, medicine, public health, geriatrics, nursing
Tuesday, March 18, 2014
Professor Donna Harkness: "What Are Families For? Re-evaluating Return to Filial Responsibility Laws"
Donna Harkness, clinical professor of law and director of the Elder Law Clinic at the University of Memphis Cecil C. Humphries School of Law, has a new article on filial support laws in the most recent issue of the University of Illinois's Elder Law Journal. In "What Are Families For? Re-valuating Return to Filial Responsibilities Laws," she concludes:
"Despite their long history, filial responsibility laws have clearly failed to remedy existing needs. The lack of uniformity in filial responsibility laws, the difficulty and cost of enforcement, along with the fact that such laws provide no coverage to those elder Americans that have no adult children to look to for support, render them a limited response at best. In addition, to the extent that filial responsibility laws are enforced, evidence indicates they would be destructive to family ties and have the counterproductive effect of further eroding and destabilizing the network of support available to elders.
Furthermore, by focusing solely on economic support, filial responsibility laws do not address the fundamental need that all persons, and most especially the vulnerable elderly, have to be supported by caring relationships. To the extent that the institution of the family, however defined, is the key to ensuring that such relationships exist, it behooves us as a society to strengthen and foster family ties through policy initiatives that reward caring relationships."
Monday, March 17, 2014
Health Care Compliance Institute
3 academic credits, 35 CLE credits
From 3L student Katie L. Summers at my own law school, Penn State Dickinson, a recently published Penn State Law Review comment titled "Medicaid Estate Recovery: To Expand, or Not to Expand, That is the Question." Here is a taste, from the abstract:
"To recoup some of the costs of Medicaid, the states are required to implement a Medicaid estate recovery program. There are certain mandated requirements, but the reach of the recovery program is primarily left to the discretion of the states. Pennsylvania recently contemplated expanding its Medicaid estate recovery program, but the proposed changes were not enacted. This Comment provides an overview of Medicaid estate recovery in Pennsylvania by exploring the background of Medicaid, Medicaid estate planning, and Medicaid estate recovery generally. In addition, this Comment examines the arguments for and against Medicaid estate recovery. Finally, this Comment recommends the creation of a system that expands Medicaid estate recovery in Pennsylvania, while retaining certain protections for the deceased Medicaid recipient’s heirs."
Sunday, March 16, 2014
Remember the first time you went to camp and your mother put labels on all of your clothes? At the other end of the timeline is the need to keep track of personal items, clothing and eye glasses in senior care facilities. One of the most common complaints in residential care is "missing" things ... like your dad's favorite red sweater.
Now there is new tool to help staff get items back in their proper place -- and the tool is useful whether the location is camp, college or a nursing home.
Check out identaMe labels -- waterproof, self-sticking, laundry-friendly and colorful. You can order pre-printed labels on-line, complete with your loved one's name and a "catchy" logo.
Tuesday, March 11, 2014
HHS OIG says that Less Than Half of Part D Sponsors Voluntarily Reported Data on Potential Fraud and Abuse
U.S. Department of Health and Human Services, Office of the Inspector General
Report (OEI-03-13-00030) 03-03-2014
Less Than Half of Part D Sponsors Voluntarily Reported Data on Potential Fraud and Abuse
Summary: In 2011, total expenditures for the Medicare Part D prescription drug program were $67.1 billion. CMS contracts with plan sponsors to provide Part D coverage to beneficiaries. The Office of Inspector General has recommended that CMS require sponsors to report data on potential fraud and abuse related to Part D to CMS. Rather than requiring these data, CMS encouraged sponsors to voluntarily report them beginning in 2010. This study provides information on the fraud and abuse data reported by sponsors and on whether CMS used these data to monitor or oversee the Part D program.
OIG accessed CMS's Healthcare Plan Management System to download data on potential fraud and abuse reported by Part D plan sponsors from 2010 through 2012. It also accessed CMS's public files of Part D enrollment to determine the number of beneficiaries enrolled in Part D plans from 2010 through 2012. OIG reviewed the sponsors' aggregate data to determine the number and percentage of sponsors that reported data on potential fraud and abuse each year. In addition, it surveyed CMS about its review and use of these reported data.
More than half of Part D plan sponsors did not report data on potential fraud and abuse between 2010 and 2012. Of those sponsors that did report data, more than one-third did not identify any incidents for at least one of their reporting years. In total, sponsors reported identifying 64,135 incidents of potential fraud and abuse between 2010 and 2012. Sponsors' identification of such incidents varied significantly, from 0 to almost 14,000 incidents a year. CMS requires sponsors to conduct inquiries and implement corrective actions in response to incidents of potential fraud and abuse; however, 28 percent of Part D plan sponsors reported performing none of these actions between 2010 and 2012. Although CMS reported that it conducted basic summary analyses of the data on potential fraud and abuse, it did not perform quality assurance checks on the data or use them to monitor or oversee the Part D program.
OIG recommends that CMS (1) amend regulations to require sponsors to report to CMS their identification of and response to potential fraud and abuse; (2) provide sponsors with specific guidelines on how to define and count incidents, related inquiries, and corrective actions; (3) review data to determine why certain sponsors treported especially high or low numbers of incidents, related inquiries, and corrective actions; and (4) share sponsors' data on potential fraud and abuse with all sponsors and law enforcement. CMS did not concur with the first recommendation, partially concurred with the second and fourth recommendations, and concurred with the third recommendation.
Download the complete report.