Sunday, October 30, 2016
The New England Journal of Medicine published a study that shows by region where people spend more time at home at the end of life. Days Spent at Home — A Patient-Centered Goal and Outcome notes that
Being home at the end of one’s life will never be a universal goal, but our experience and academic research suggest that, all else being equal, patients would rather be at home than in health care facilities. When surveyed about their preferences for dealing with a terminal illness, most people (86%) indicated that they would prefer to be at home in their final days. In addition, they would not want to be on a ventilator in order to gain an extra week of life, and they are not opposed to drugs that could improve symptoms but potentially shorten life. These preferences are highly consistent across regions of the country and people’s socioeconomic status.1 Despite this consistency in end-of-life preferences, there is wide regional variation in the intensity of, expenditures on, and locations of care provided during the last 6 months of life.
The Wall Street Journal reported on the study. Where the Elderly Die Can Vary by Region, Study Shows explains that
How much time people spend in hospitals or nursing homes in the final months of life, instead of at home, varies widely depending on where they live, new research shows.
Across the Rockies and regions of the Gulf Coast, the dying spend more than two additional weeks hospitalized or in other facilities, on average, compared with those at the end of life in the Midwest and Montana, researchers reported Wednesday in the New England Journal of Medicine.
In other parts of the country, the picture is more mixed but still differs sharply from one community to another.
The study also looks at the differences in Medicare spending as a result of the regional variations. "Research suggests one reason for the geographical spending swings may be that doctors practice medicine differently in some areas of the country than others, with some doctors doing more despite little difference in results." Even in some instances where the patient's care was supposed to be delivered at home, that didn't occur. "The ... study also found that health-care and hospice services intended to keep people at home perhaps did not do so. Regions where use of home care and hospice were greater also had higher use of hospitals and nursing homes ...."
Thursday, October 27, 2016
The Administration for Community Living (ACL) released on October 26, 2016 the unpublished final regulation for independent living programs (the reg is officially published on October 27, 2016). The rule is effective November 25, 2016.
The discussion section explains the new rule
The federal Independent Living (IL) program seeks to empower and enable individuals with disabilities, particularly individuals with significant disabilities, to exercise full choice and control over their lives and to live independently in their communities. For over 40 years, these aims have been advanced through two federal programs: Independent Living Services (ILS) and Centers for Independent Living (referred to as CILs or Centers). The Workforce Innovation and Opportunity Act (WIOA) transferred these Independent Living programs to the Administration for Community Living (ACL) and created a new Independent Living Administration within the agency, adding section 701A of the Rehabilitation Act, 29 U.S.C. 796-1.
According to the ACL news release, the new regs:
Clarifies requirements surrounding WIOA’s addition of new core services to:
- Facilitate the transition of individuals with significant disabilities from nursing homes and other institutions to home and community-based settings
- Provide assistance to individuals with significant disabilities who self-identify as being at risk of entering institutions so that the individuals may remain in the community
- Facilitate the transition of youth with significant disabilities who are no longer in school and no longer receiving services under section 614(d) of IDEA.
Clarifies several key definitions. For example:
- “Consumer control” adds specificity to definition in the context of individuals to mean that the person with a disability has control over his or her personal life choices, independent living plan and has the right to make informed choices about content, goals and implementation. Prior to the final rule, “consumer” was sometimes interpreted to include the parents or caregivers of the person with a disability
- “Personal assistance services” is now defined to explicitly include assistance with activities outside of employment, such as social activities and parenting.
Addresses the roles and responsibilities of the State Independent Living Council, as defined by WIOA. For example, the final rule:
Includes additional details of what must be a part of the SILC Resource Plan to carry out the functions of the SILC
Addresses the SILC’s authority to conduct resource development activities to support the provision of services by Centers for Independent Living
Clarifies the expanded role of the SILC in the development of the State Plan for Independent Living.
Wednesday, October 26, 2016
DOJ announced recently that it had settled a False Claims case against Life Care Centers of America Inc. (Life Care) and its owner, Forrest L. Preston. The defendants agreed to pay $145 million to settle a case where the Government claimed “that Life Care violated the False Claims Act by knowingly causing skilled nursing facilities (SNFs) to submit false claims to Medicare and TRICARE for rehabilitation therapy services that were not reasonable, necessary or skilled….” In addition, the defendant also signed a Corporate Integrity Agreement with the Office of Inspector General (HHS-OIG) for HHS. Under this 5 year agreement, “an independent review organization [will] … annually assess the medical necessity and appropriateness of therapy services billed to Medicare” by the defendant. The suit was brought pursuant to the whistleblower provision of the False Claims Act.
According to the suit, the defendant put corporate-wide procedures and polices into place that caused a maximum number of “beneficiaries in the Ultra High reimbursement level irrespective of the clinical needs of the patients, resulting in the provision of unreasonable and unnecessary therapy to many beneficiaries.” Further the defendant tried to keep SNF residents longer than needed so the defendant could continue to bill for rehab, even though the therapists concluded therapy should be ended. The defendant kept careful track of the therapy minutes per patient and the patient’s therapy days so that the maximum number of patients were at that “highest level of reimbursement for the longest possible period.”
According to an email I received, the amount of the settlement was partially based on statistical sampling.
Thanks to Laurence Hooper for emailing me.
Tuesday, October 25, 2016
The New York Times ran an article recently on individuals voluntarily refusing nutrition and hydration as a way to speed up the end of life. The VSED Exit: A Way to Speed Up Dying, Without Asking Permission focuses on individuals who voluntarily give up eating and drinking. We know that only a handful of states offer Physician-Aided Dying and even in states where that is legalized, not everyone fits within the parameters of the statute. "In end-of-life circles, [the] option [voluntarily giving up food and fluids] is called VSED (usually pronounced VEEsed), for voluntarily stopping eating and drinking. It causes death by dehydration, usually within seven to 14 days. To people with serious illnesses who want to hasten their deaths, a small but determined group, VSED can sound like a reasonable exit strategy."
The article notes that for individuals who avail themselves of VSED, no law seems to be needed (although there is still some uncertainty on that point), no court intervention is required, but the individual needs a lot of fortitude, “'It’s for strong-willed, independent people with very supportive families,' said Dr. Timothy Quill, a veteran palliative care physician at the University of Rochester Medical Center."
One unanswered question is whether VSED is "legal".
For a mentally competent patient, able to grasp and communicate decisions, probably so, said Thaddeus Pope, director of the Health Law Institute at Mitchell Hamline School of Law in St. Paul, Minn. His research has found no laws expressly prohibiting competent people from VSED, and the right to refuse medical and health care intervention is well established.
Still, he pointed out, “absence of prohibition is not the same as permission.” Health care professionals can be reluctant to become involved, because “they want a green light, and there isn’t one of those for VSED,” he added.
The question grows much murkier for patients with dementia or mental illness who have specified VSED under certain circumstances through advance directives. Several states, including Wisconsin and New York, forbid health care surrogates to stop food and fluids. (Oregon legislators, on the other hand, are considering drafting a bill to allow surrogates to withhold nutrition.)
The article reports on a recent conference and some of the issues discussed there. The article also explains that with VSED, death doesn't come as quickly as with PAD, leading to issues for patients and caregivers. The article also notes there are (or likely could be) obstacles to using VSED, such as positions taken by long term care facilities or specific religions.
This topic would be great for a class discussion.
Monday, October 24, 2016
Kaiser Health News ran a story, Staying Out Of The Closet In Old Age. The article explores the issues faced by elders who are out and become frail and need caregivers or supportive housing. How significant are the issues faced by these elders? According to one expert quoted in the article, very.
“It is a very serious challenge for many LGBT older people,” said Michael Adams, chief executive officer of SAGE, or Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders. “[They] really fought to create a world where people could be out and proud. … Now our LGBT pioneers are sharing residences with those who harbor the most bias against them.”
Efforts are underway to move long term care providers to a point of understanding. Such efforts include
Nationwide, advocacy groups are pushing to improve conditions and expand options for gay and lesbian seniors. Facilities for LGBT seniors have opened in Chicago, Philadelphia, San Francisco and elsewhere.
SAGE staff are also training providers at nursing homes and elsewhere to provide a more supportive environment for elderly gays and lesbians. That may mean asking different questions at intake, such as whether they have a partner rather than if they are married (even though they can get married, not all older couples have). Or it could be a matter of educating other residents and offering activities specific to the LGBT community like gay-friendly movies or lectures.
The article mentions a report this summer from Justice in Aging (formerly the National Senior Citizens Law Center), How Can Legal Services Better Meet the Needs of Low-Income LGBT Seniors? in which it was reported that 1/5 of those elder LGBTQI individuals in LTC facilities felt ok with being open about being an LGBTQI elder.
The article discusses the difficulty in finding housing and reports on some options that have developed, such as "the Los Angeles Gay & Lesbian Elder Housing organization opened Triangle Square Apartments in 2007. In the building, the first of its kind, residents can get health and social services through the Los Angeles LGBT Center. The wait for apartments with the biggest subsidies is about five years."
Friday, October 21, 2016
LeadingAge, the trade association that represents nonprofit providers of senior services, begins its annual meeting at the end of October. This year's theme is "Be the Difference," a call for changing the conversation about aging. I won't be able to attend this year and I'm sorry that is true, as I am always impressed with the line-up of topics and the window the conference provides for academics into industry perspectives on common concerns. For example, this year's line up of workshops and topics includes:
- General sessions featuring Pulitzer Prize winning journalist Charles Duhigg on the "The Science of Productivity," 2013 MacArthur Fellow and psychologist Angela Duckworth on the the importance of grit and perservance for successful leadership, and famed neurosurgeon and speaker Sanjay Gupta on "Medicine and the Media."
- Hundreds of sessions, organized by "interest groups":
October 21, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Science, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (2)
Thursday, October 20, 2016
Geripal-a geriatrics/palliative care blog-has started a podcast series. The first one is on bed alarms. The podcasts include links to articles referenced in the podcasts. For the one on bed alarms, the following were discussed:
Barker Anna L, Morello Renata T, Wolfe Rory, Brand Caroline A, Haines Terry P, Hill Keith D et al. 6-PACK programme to decrease fall injuries in acute hospitals: cluster randomised controlled trial BMJ 2016; 352 :h6781
Shorr RI, Chandler AM, Mion LC, Waters TM, Liu M, Daniels MJ, et al. Effects of an Intervention to Increase Bed Alarm Use to Prevent Falls in Hospitalized Patients: A Cluster Randomized Trial. Ann Intern Med. 2012;157:692-699.
Zisberg, A., Shadmi, E., Sinoff, G., Gur-Yaish, N., Srulovici, E. and Admi, H. (2011), Low Mobility During Hospitalization and Functional Decline in Older Adults. Journal of the American Geriatrics Society, 59: 266–273
Click here to access the podcast.
Wednesday, October 19, 2016
The most recent issue of Governing magazine contains an article on the upcoming vote in Colorado on aid-in-dying. Colorado Could Strengthen Aid-in-Dying Movement explains "[t]he movement has been slow to gain momentum -- Oregon was the first state to legalize aid in dying in 1994. But Colorado could reignite the cause in November. Voters there will be weighing Proposition 106, a ballot measure modeled after Oregon's. It would give mentally competent adults with a medical prognosis of six months to live the right to request a prescription to end their lives. Two doctors must agree."
The article notes that looking at past state referendums, one would think the odds are long for Colorado approving the measure. But "Colorado ... may beat the odds. According to a September poll, 70 percent of Colorado voters support the measure, 22 percent oppose it and 8 percent are undecided."
As to be expected with this type of legislation, there are supporters and opponents. Two of the state's newspapers urged voters to not support the bill. The governor of Colorado supports the bill, saying: '"It’s not about suicide.... These people are going to die anyway. They’re terminally ill… I think they should have that right to have medical advice, medical supervision, be able to make sure they have the final say themselves."'
University of Illinois Law Professor Richard Kaplan has a new article available, entitled Religion and Advance Medical Directives: Formulation and Enforcement Implications.
From the abstract:
This Article examines the role of religion in the creation and enforcement of advance medical directives. It begins by setting out the principal similarities and differences between the two types of such directives—namely, living wills and health care proxies (or powers of attorney). It then considers the formulation of religiously oriented advance directives and their incorporation of religious doctrine and imperatives. The Article then addresses the impact that the religious views of an individual patient’s treating physician might have on such directives. Finally, the Article analyzes religiously based challenges to the enforcement of advance medical directives, paying particular attention to the Terri Schiavo case and its continuing significance.
This is an opportunity for us to remind readers to make sure you alert us to your forthcoming articles that touch on elder law topics. Thank you, Dick.
Tuesday, October 18, 2016
We've blogged on several occasions about aging in place. So a recent article in the New York Times caught my eye. The Future of Retirement Communities: Walkable and Urban starts out noting our dependence on cars to get where we want to go, but perhaps that is about to change. "Few people in America walk to work. Most of us drive to the supermarket. But more older people these days are looking for a community where they can enjoy a full life without a car." Focusing on one couple's search for the perfect community, the couple explained, "'[w]e realized ‘aging in place’ means a lot more than just a comfortable house ... [s]o we began thinking more about ‘aging in community.’ That means an urban neighborhood where you can walk or take transit to just about everything you need.'”
This concept, walkable living, isn't a new one, but is one that has somewhat fallen to the wayside with our dependence on cars and cities designed for vehicles rather than people. "Developments for independent retirees typically come in two flavors: isolated, gated subdivisions or large homes on golf courses, often in the same bland package of multiple cul-de-sacs. Both require driving everywhere, which is a problem for those who either don’t want to drive or can’t."
With new urbanism, an emphasis on walkable communities is gaining traction. Of course, walkability leads to more activity, which we know has benefits to those walking. There are challenges to building communities for aging. The article mentions the hurdles. "Age-friendly communities within cities may require extensive infrastructure improvements, including wider sidewalks, bike lanes, more public transportation options and longer pedestrian signal walk times. Local officials may not want to rezone or invest in the improvements or even permit them." Then factor in costs, because some currently walkable cities are also costly for residents. There are tradeoffs, however, so don't rule those out.
Have you students read this article, and have them judge your community for "aging in community."
Monday, October 17, 2016
We knew it was coming. The American Healthcare Association has filed suit in the federal district court in the Northern District in Mississippi, challenging the CMS rule that prohibits pre-dispute arbitration in nursing home admission contracts, American Health Care Association Files Court Challenge to Arbitration Rule: CMS Exceeds Statutory Authority by Banning Pre-Dispute Arbitration Agreements in Updated Requirements of Participation
The press release explains
The American Health Care Association (AHCA) today filed a lawsuit against the Department of Health and Human Services challenging the legality of a provision of a recently released regulation. The Requirements of Participation final rule, issued by the Centers for Medicare and Medicaid Services (CMS) on September 29, will prohibit skilled and nursing care facilities from entering into pre-dispute arbitration agreements with residents at their centers, no matter how fair or beneficial those agreements may be to residents.against the Department of Health and Human Services challenging the legality of a provision of a recently released regulation. The Requirements of Participation final rule, issued by the Centers for Medicare and Medicaid Services (CMS) on September 29, will prohibit skilled and nursing care facilities from entering into pre-dispute arbitration agreements with residents at their centers, no matter how fair or beneficial those agreements may be to residents.
The suit "request[s] the courts [act] to stop the enforcement of the arbitration portion of the rule after its effective date of November 28, 2016." The complaint is available here.
Arizona has two interesting initiatives on the 2016 ballot for the November 8th election. One is Proposition 205, which would legalize recreational marijuana if passed; the other is Proposition 206 which would increase the state's minimum wage from $8.05 per hour to $10 per hour in 2017 (and incrementally thereafter to $12 by 2020), plus require employers to provide paid sick leave (40 hours annually for large employers and 24 hours annually for small employers). Guess which Prop is getting the lion's share of attention on media airwaves? Nonetheless, both measures are high profile and certainly the wage initiative should be carefully considered.
Mark Young, who is president of the Arizona In-Home Care Association, and operates a home care company in Arizona, offers an interesting perspective on the potential impact of higher minimum wages in a column published recently on the Opinion page for the Prescott Daily Courier. He opens:
He cites Seattle's increase of minimum wage to $15/hour as evidence of an corresponding increase for the average cost of in-home care to nearly $35 per hour, making such services "out of reach for many seniors." He continues:
Even more concerning is the potential unintended consequences of Prop 206: The emergence of an underground market which would place liability and risk on our most vulnerable community members. This could result in increased financial, physical, or even mental abuse by predators targeting seniors and disabled adults and children – a segment of our society already at risk.
As our senior population grows the demand for skilled caregivers has been increasing dramatically. If the cost to employ skilled caregivers goes up while the pool of available workers shrinks, many in-home care agencies will be forced to meet demand by hiring workers who are less expensive but also less experienced which could negatively impact overall quality of care.
The affordability argument for home care I understand, but I'm pretty darn skeptical of an argument that keeping the official minimum wage under $10 per hour protects against predatory behavior by home care workers. Nonetheless, it will be interesting to see how Arizonans vote on these two propositions, especially given the state's often libertarian take on conservative politics. At least one poll shows Arizonans favor the incremental increases under Prop 206 to $12 per hour.
Friday, October 14, 2016
The New York Times ran an article on October 7, 2016 exploring the "gray gender gap." The Gray Gender Gap: Older Women Are Likelier to Go It Alone is based on a recent report Older Americans 2016: Key Indicators of Well-Being (available here as a pdf). The author focuses on marital status, and notes by age, men are more likely than women to be married. "About three-quarters of men ages 65 to 74 are married, compared with 58 percent of women in that age group. More surprisingly, the proportion of men who are married at 75 to 84 doesn’t decline; among women, it drops to 42 percent...Even among men over 85, nearly 60 percent are married. By that point, only 17 percent of women are." The article looks at the reasons for this disparity and discusses the economic impact of "going it alone." According to a study referenced in the article, "[a]bout 8 percent of married older adults are poor or “near poor.” Among unmarried men, the percentage rises to about 20 percent. For unmarried women, it’s 27 percent." Economics are not the only benefit that may come from marriage. There may be health benefits, too. The article notes as well that there are caregiving facing those who are going it alone. Some people actually flourish being alone, but it is interesting to think about this gray gender gap!
Wednesday, October 12, 2016
A new stage has been added to the human life cycle due to increasing numbers of the very old. In particular, adults over eighty constitute a new focus for developmental research. These older adults seem to have reached a stage beyond Erikson’s eight stages, first proposed sixty-four years ago. As Joan Erikson suggested, eight stages no longer capture the end of life concerns of this older group. In this paper, I review the research focusing on the self-reports of individuals who are still thriving in their eighties and nineties. I suggest that this research supports a ninth Eriksonian life stage. This ninth stage might be called “Appreciation versus Resignation with the associated strength, Enthusiasm.” A defining aspect of the elders described in the studies cited below is that they express a keen appreciation for their extended years and a determination not to squander them. I discuss implications for practice and for further research.
Who are these 9th stagers and why study them? According to the introduction,
“Ninth stagers” are individuals in their eighties and nineties. I suggest that the emerging picture of this stage is considerably brighter than the one Joan Erikson painted. In the spirit of Erik Erikson’s (1950) proposed eight stages, I suggest that the ninth stage is characterized by a dialectical tension between two qualities, appreciation and resignation, with the associated strength, enthusiasm. I consider research focused on ninth stagers’ self-reports as well as research on the essential conditions for sustaining vitality and enthusiasm. Following Gawande (2015), I suggest that our diminished picture of the capacity for vitality in ninth stagers is, in part, an artifact of the medicalized assisted living environment in which many of our seniors live and the deleterious effect of this environment on their autonomy, competence, and relatedness.
The 9 page article looks at vitality, longevity and psychological variables to name a few. The author concludes "this ninth life stage might be called “Appreciation versus Resignation with the associated strength, Enthusiasm.” A defining aspect of many of the elders in the studies cited was that they expressed keen appreciation for their extended years and a determination not to squander them. Enthusiasm does not seem too strong a word to characterize their strength. Toquote Henry David Thoreau: 'None are so old as those who have outlived enthusiasm.'"
A pdf of the article is available for download from here.
Tuesday, October 11, 2016
Robin Williams was an amazing, brilliant individual. His wife, Susan Schneider Williams, wrote an editorial recently for Neurology. The terrorist inside my husband's brain was written to help the doctors have a better understanding of their patients, spouses and caregivers. This is a compelling essay that gives us insight into Mr. Williams' situation and that of his wife. All dementias are horrible diseases, and Lewy Body strikes almost 1.5 million folks according to the editorial. Of course, Mr. Williams isn't the only one who has had Lewy Body, but he might be the most famous and was one of the few hit so hard by the disease. "Although not alone, his case was extreme. Not until the coroner's report, 3 months after his death, would I learn that it was diffuse LBD that took him. All 4 of the doctors I met with afterwards and who had reviewed his records indicated his was one of the worst pathologies they had seen. He had about 40% loss of dopamine neurons and almost no neurons were free of Lewy bodies throughout the entire brain and brainstem."
Mrs. Williams walks the reader through the last months of their life together, describing how the disease was affecting Mr. Williams personally and professionally. Brilliant and talented, "Robin was losing his mind and he was aware of it. Can you imagine the pain he felt as he experienced himself disintegrating? And not from something he would ever know the name of, or understand? Neither he, nor anyone could stop it—no amount of intelligence or love could hold it back." She explains the difficulties with diagnosis and their work to determine how to treat him.
She offers that she and Mr. Williams "had begun our unplanned research on the brain through the door of blind experience. During the final months we shared together, our sights were locked fast on identifying and vanquishing the terrorist within his brain. Since then, I have continued our research but on the other side of that experience, in the realm of the science behind it."
This is a powerful, emotional first person account.
Monday, October 10, 2016
In April 2015, we followed the Iowa state criminal trial of a former state legislator for allegedly having sexual relations with his wife in her nursing home after she was diagnosed with Alzheimer's Disease. See here, here and here, for example. The charge of "sexual assault" was based on an Iowa statute that criminalized a sexual act "between persons who are not at the time cohabiting as husband and wife" if "the other person is suffering from a mental defect or incapacity which precludes giving consent." See Iowa Criminal Code Sections 709.1, 709.1A, and 709.4(2)(a). After a several day high-profile trial -- where emotions were running high on all sides with family members, witnesses and attorneys -- the jury acquitted Henry Rayhons, then age 79. The prosecutor took the position that any theory the wife "consented" to sexual relations was completely irrelevant as a matter of law, because of her debilitating mental condition.
The legal proceedings did not stop with the criminal case. A year later, Henry Rayhons filed a civil suit for damages, alleging various state law claims such as (1) defamation, (2) intentional infliction of emotional distress, (3) malicious prosecution, (4) negligent infliction of emotional distress, (5) negligence, and (6) loss of consortium against various individual defendants. Defendants named on certain of the state law counts included two adult daughters of his deceased wife and his wife's treating physician at the nursing home. Separate counts named the nursing home itself on state law claims of vicarious liability. Count IX of the petition alleged a claim under the federal civil rights statute, 42 U.S.C. Section 1983, against the state prosecutor in the criminal case. In July 2016, the prosecutor, Susan Krisko, removed the case to federal court and filed a motion for summary judgment.
October 10, 2016 in Advance Directives/End-of-Life, Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (2)
Will New Federal Ban on Pre-Dispute "Binding" Arbitration Clauses in LTC Agreements Survive Likely Challenges?
My colleague Becky Morgan provided prompt links and important initial commentary for CMS's recently issued final regulations that are intended to "improve the quality of life, care, and services" in Long-Term Care (LTC) facilities. As we start to digest the 700+ pages of changes and commentary, it seems clear the battle over a key section that bans pre-dispute binding arbitration agreements is already shaping up. This rule, at 40 CFR Section 483.70(n), has an implementation date of November 28, 2016.
The regulatory ban on pre-dispute binding arbitration in covered facilities raises the question of "conflict" with the Federal Arbitration Act (FAA), 9 U.S.C. Section 1 et seq. The 2012 per curium ruling by the Supreme Court in Marmet Health Care Center, Inc. v. Brown, shapes the issue, if not the result.
CMS distinguishes Marmet and presents the rule change as based on authority granted under the Social Security Act to the Secretary of Health and Human Service to issue "such rules as may be necessary to the efficient administration of the functions of the Department," which necessarily includes supervision of all providers, including LTC providers, who "participate in the Medicare and Medicaid programs." CMS points to the long history of regulatory authority over LTC including long-celebrated "patient's rights" legislation adopted in the late 1980s. CMS further explains (at page 399 of the 700 page commentary to the new rules):
Based on the comments received in response to this rulemaking, we are convinced that requiring residents to sign pre-dispute arbitration agreements is fundamentally unfair because, among other things, it is almost impossible for residents or their decision-makers to give fully informed and voluntary consent to arbitration before a dispute has arisen. We believe that LTC residents should have a right to access the court system if a dispute with a facility arises, and that any agreement to arbitrate a claim should be knowing and voluntary. . . .
We recognize that an argument could be made that Medicare and Medicaid beneficiaries can assert in Court the FAA's saving clause if they believe that a pre-dispute arbitration agreement should not be enforced. However, the comments we have received have confirmed our conclusion that predispute arbitration clauses are, by their very nature, unconscionable. As one commenter noted, it is virtually impossible for a resident or their surrogate decision-maker to give fully informed or voluntary consent to such arbitration provisions. That same commenter 402 also noted that refusing to agree to the arbitration clause, in most cases, means that care will be denied.
Furthermore, Medicare and Medicaid beneficiaries are aged or disabled and ill. Many beneficiaries lack the resources to litigate a malpractice claim, much less an initial claim seeking to invalidate an arbitration clause. Rather than requiring Medicare and Medicaid beneficiaries to incur the additional fees, expense, and delay that would be the direct cost of opposing a motion to enforce arbitration, we have concluded that this is precisely the type of situation envisioned by the Congressional grant of authority contained in sections 1819(d)(4)(B) and 1919(d)(4)(B) of the Act authorizing the Secretary to establish "such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.”
By coincidence, just hours before the final LTC rules issued by CMS, the Pennsylvania Supreme Court enforced pre-dispute arbitration agreements for nursing home residents in Taylor v. Extendicare Health Facilities (decided September 28, 2016).
The LTC industry seems ready to fight, as reported by industry insiders at McKnight's News on September 29, 2016:
Both the American Health Care Association and LeadingAge expressed disappointment in the arbitration ban in statements provided to McKnight's.
“That provision clearly exceeds CMS's statutory authority and is wholly unnecessary to protect residents' health and safety,” said Mark Parkinson, president and CEO of AHCA.
LeadingAge has supported arbitration agreements that are “properly structured and allow parties to have a speedy and cost-effective alternative to traditional litigation,” but believes CMS has overstepped its boundaries with the ban, the group said.
“Arbitration agreements should be enforced if they were executed separately from the admission agreement, were not a condition of admissions, and allowed the resident to rescind the agreement within a reasonable time frame,” LeadingAge added in its statement.
Stay tuned -- but don't hold your breath as the next round is likely to take some time. My special thanks to Megan Armstrong, Class of 2018 at Dickinson Law, for sharing key links with me for our research on this important development.
October 10, 2016 in Consumer Information, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Sunday, October 9, 2016
The GAO issued a new report regarding the accessibility of SNF expenditure data. Skilled Nursing Facilities: CMS Should Improve Accessibility & Reliability of Expenditure Data was released October 6, 2016. Here is what the GAO found
The Centers for Medicare & Medicaid Services (CMS) ... collects and reports expenditure data from skilled nursing facilities (SNF), but it has not taken key steps to make the data readily accessible to public stakeholders or to ensure their reliability. SNFs are required to self-report their expenditures in annual financial cost reports, and CMS posts the raw data on its website. However, CMS has not provided the data in a readily accessible format and has not posted the data in a place that is easy to find on its website, according to public stakeholders and GAO's observations. In addition, CMS does little to ensure the accuracy and completeness of the data. Federal internal control standards suggest that agencies should make data accessible to the public and ensure data reliability. Until CMS takes steps to make reliable SNF expenditure data easier to use and locate, public stakeholders will have difficulty accessing and placing confidence in the only publicly available source of financial data for many SNFs.
GAO found that, for each fiscal year from 2011 through 2014, direct and indirect care costs were lower as a percentage of revenue, on average, at for-profit SNFs compared with nonprofit and government SNFs. Direct and indirect care costs were similarly lower at chain SNFs compared with independent SNFs. In addition, the median margin, which measures revenue relative to costs, was higher for for-profit and chain SNFs than for other SNFs in each of the 4 years.
The relationship between SNFs' nurse staffing levels (hours per resident day) and their margins varied by ownership type in each fiscal year from 2012 through 2014, the 3 years with complete staffing data. For-profit SNFs generally had lower nurse staffing ratios than did nonprofit and government SNFs. Examining each fiscal year separately, GAO estimated that a SNF's margin had a small, but statistically significant, effect on its case-mix adjusted (that is, adjusted for residents' health care needs) nurse staffing ratios. For example, for each percentage point increase in a for-profit SNF's margin in fiscal year 2014, GAO estimated that the SNF's total nurse staffing ratio (including registered nurses, licensed practical nurses, and certified nursing assistants) decreased by 4.1 minutes per resident day after controlling for other factors. However, in GAO's analyses, these other factors, such as geographic location, were more important predictors of a SNF's case-mix adjusted nurse staffing ratios.
A pdf of the report is available here.
Friday, October 7, 2016
The Kaiser Family Foundation ran a story, The Gap in Medigap focuses on the "gap" for those individuals with disabilities on Medicare who don't have Medigap policies. The gap is significant: "even with Medicare, beneficiaries under 65 with disabilities report greater difficulty accessing the care they need, sometimes because they cannot afford the cost. For some, this may be related to not having supplemental coverage, such as Medigap, to help with their out-of-pocket costs. In fact, a much smaller share of beneficiaries under 65 with disabilities than seniors have a Medigap policy (2% versus 17%, respectively), and a much higher share have no supplemental coverage whatsoever (21% versus 12%)."
Why the gap? Cost may be a factor, but the article offers another, compelling reason.
The substantially lower rate of Medigap coverage among under age 65 adults with disabilities may be due in large part to the provision in the federal law mentioned above that gives Medicare beneficiaries age 65 and older the right to purchase a Medigap policy during the first six months after they enroll in Medicare Part B and under other limited circumstances, but does not provide the same guarantee to younger people who are entitled to Medicare due to having a disability. According to the Centers for Medicare & Medicaid Services, 31 states have gone beyond the federal minimum standard to require insurers in their states to provide at least one kind of Medigap policy to beneficiaries younger than age 65, but the other 19 states and DC have not ....
The article also notes how things have changed since the law went into place over 25 years ago, including changes to the Medigap provisions of the Medicare statute. One of the big changes is that with Part D, Medigap policies no longer cover prescription drugs. So factoring out the Part D spending, the Kaiser story notes "Medicare per capita costs are similar for younger beneficiaries with disabilities and seniors...."
So why maintain the difference between those 65 and older and those under 65 with disabilities? Is it time for a change? The article suggests yes, that "it’s not clear what the justification is for treating younger adults with disabilities differently from older adults when it comes to buying a Medigap policy." The article proposes several benefits to changing the law which "could help to reduce the gap in Medigap coverage between younger and older beneficiaries, help alleviate cost-related access problems among the relatively small but vulnerable group of people under 65 who qualify for Medicare, and provide more equitable treatment to Medicare beneficiaries across the states."
Good food for thought! (and maybe a good topic for a student paper)
Thursday, October 6, 2016
Kaiser Health News wrote about a new and somewhat controversial therapy being used with Alzheimer's patients, known as "doll therapy." When Pretend Play Is Real For Alzheimer’s Patients explains that "[n]ursing homes and other senior facilities nationwide are using a controversial technique called doll therapy to ease anxiety among their residents with dementia. Senior care providers and experts say the dolls are an alternative to medication and help draw in elderly people who are no longer able to participate in many activities."
As elder law profs, we know how important it is to educate our students about autonomy and avoiding stereotypes, so some may be wondering about the therapeutic benefit this therapy might have with elders. An expert from the Alzheimer's Association expounded on that point: "[c]aregivers aren’t trying to make their charges believe the dolls are real infants, and they don’t want to infantilize the seniors ... They are just 'trying to meet them where they are and communicate with them in a way that makes sense to them.'” The article refers to some studies on this therapy, features stories of individuals with family members who have undergone the therapy and discusses some of the concerns about such therapy such as the perception that may arise as a result of elders playing with dolls.
The story made me think of Paro, the therapeutic robot which is used for some similar reasons, such as "to reduce patient stress... stimulates interaction between patients and caregivers... and improves the socialiazation of patients with each other and with caregivers...."