Friday, January 31, 2014
"Should I Stay or Should I Go?," the punk classic from The Clash, provides an appropriate soundtrack for a study of turnover rates of Certified Nursing Assistants (CNAs) working in nursing homes. "Stayers, Leavers, and Switchers Among Certified Nursing Assistants in Nursing Homes: A Longitudinal Investigation of Turnover Intent, Staff Retention and Turnover," published in The Gerontologist, suggests that pay rates were not, surprisingly, a major predictor of turnover rates.
It would be interesting to see whether the contributing factors identified in this study, published in 2011, including low job satisfication and the absence of health insurance, would be more or less influential in turnover of long-term care workers in the home.
Wednesday, January 29, 2014
In recent years, a number of operators of Continuing Care Retirement Communities (CCRCs) have adopted the concept of Continuing Care at Home (CCaH) or LifeCare at Home, as a way to expand their client base and utilize existing resources in a cost-effective manner. This has been especially important since the 2008-10 crash in home sales prevented many seniors from cashing in on accrued equity to finance a move to a CCRC.
On February 13, Irving Levin Associates is hosting a webinar on Continuing Care at Home, with leaders in the movement speaking on their experiences with this still-new product. The program will address:
|What is the CCaH business model? Can it be a stand-alone business?|
|What services are offered? What are the member fees?|
|What are the start-up and operating costs?|
|What are the challenges?|
|What is the response from participating seniors?|
The hosts advise the program is designed to address the interests of owners, operators and developors of senior housing and long-term care facilities, appraisers, institutional investors bankers, venture capitalists, and others on the industry-side of senior care. To that list, I would add elder law attorneys -- and law students -- who may be called upon to answer families' questions about this product.
The one and a half hour webinar is scheduled to begin at 1 p.m. Eastern time, with a $50 savings with early registration through January 30. On-line registration is here.
Family Court & Medicaid: Does It Have a Role in Allocating Income Between Community Spouse and Nursing Home?
In R.S. v. Division of Medical Assistance & Health Services, released for publication by the Appellate Division of the Superior Court of New Jersey on January 23, the state's Medicaid agency successfully argued that a Family Court order allocating the institutionalized spouse's income to support for the community spouse was not binding on the agency in determining the Community Spouse Monthly Income Allowance (CSMIA). Thus, in the case before the court, the community spouse who had an annual salary of $22,659 was limited to the CSMIA calculation of $1,514 per month as support from her institutionalized husband, rather than the Family Court's order of $3,460 per month.
The appellate court ruling appears to be strongly influenced by facts suggesting the Family Court award, which was not opposed by the husband, was the result of Medicaid planning advice, rather than a fact-based determination of spousal support among separated or divorcing spouses. The appellate decision begins by noting the court is "asked once again to address 'the continuing tension between the State's effort to conserve Medicaid resources for the truly needy and the legal ability of institutionalized Medicaid recipients to shelter income for the benefit of their non-institutionalized spouses,'" quoting a previous New Jersey opinion in 2005.
Despite statutory grounds under Medicaid law to "protect" community spouses against "impoverishment" when their husband or wife goes into a nursing home, this ruling permits state calculations of Medicaid allowances to control just how much (or rather, how little) "protection" is available, at least where the allocation occurs at or near the time of nursing home admission.
Tuesday, January 28, 2014
Senior Care -- in all of its guises -- is Big Business. And much of that big business involves government contracts and government funding, and therefore the opportunity for whistleblower claims alleging mismanagement (or worse) of public dollars. For example, in recent weeks, we've reported here on Elder Law Prof on the $30 million dollar settlement of a whistleblower case arising out of nursing home referrals for therapy; a $3 million dollar settlement of a whistleblower case in hospice care; and a $2.2 billion dollar settlement of a whistleblower case for off-prescription marketing of drugs, including drugs sold to patients with dementia.
While the filing of charges in whistleblower cases often makes headlines, such as the recent front page coverage in the New York Times about the 8 separate whistleblower lawsuits against Health Management Associates in six states regarding treatment of patients covered by Medicare or Medicaid, the complexity of the issues can trigger investigations that last for years, impacting all parties regardless of the outcome, including the companies, their shareholders, their patients, and the whistleblowers, with the latter often cast into employment limbo.
Penn State Dickinson School of Law is hosting a program examining the impact of "Whistleblower Laws in the 21st Century: Greater Rewards, Heightened Risks, Increased Complexity" on March 20, 2014 in Carlisle, Pennsylvania.
The speakers include Kathleen Clark, John S. Lehman Research Professor at Washington University Law in St. Louis; Claudia Williams, Associate General Counsel, The Hershey Company; Jeb White, Esq., with Nolan Auerbach & White; Scott Amey, General Counsel for the Project on Government Oversight (POGO); and Stanley Brand, Esq., Distinguished Fellow in Law and Government, Penn State Dickinson School of Law.
Stay tuned for registration details, including availability of CLE credits.
January 28, 2014 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, January 24, 2014
The Justice Department has announced the settlement of a Whistleblower case, involving allegations that RehabCare Group Inc., RehabCare Group East Inc. and Rehab Systems of Missouri, plus a management company, Health Systems Inc., violated the False Claims Act by engaging in a kickback scheme related to the referral of clients between nursing homes and therapy services.
Ho-hum. Just another settlement. No admissions of wrongdoing. Promises that they won't do in the future what they say they didn't do in the past. No reason to put another Whistleblower settlement affecting elder care services on the front page of any newspapers, or make it the lead story on the nightly news, right?
But hey, the settlement figure was $30 million dollars. Thirty ... Million ... Dollars. Are we so innured to Whistleblower cases in this country that an agreement to pay $30 million dollars is viewed merely as a cost of doing business? Do we simply accept it as an extra "tax" on the price of nursing home care -- or pharmaceutical drug sales -- or hospice care -- just to name three industries that have agreed to pay multi-millions in settlement of False Claim Act suits during the last year?
I suppose the Treasury is modestly pleased to be recovering payments to offset Medicare or Medicaid costs that are constantly under assault by legislators professing concern about the size of the budget devoted to elder care. The Justice Department says that in the last five years, it "has recovered more than $17.1 billion through False Claims Act cases, with more than $12.2 billion of that amount recovered in cases involving fraud against federal health care programs."
But what about the persons receiving the care? How do these these non-admissions of fault, combined with additional costs that surely must reappear in future billings to the public, affect the elders and disabled persons depending on these companies for care?
Tuesday, January 21, 2014
Recently, a Pennsylvania friend was describing her aging father's situation in one of the sunshine states. When her father, a widower, began to show signs of diminishing capacity, the adult children discussed options, including moving Dad closer to one of them. But, he liked his retirement spot in the sunshine, had friends, and, in fact, there were more care options where he was living.
Eventually, my friend hired a local geriatric care manager in the sunshine state, with the cost shared by her and two siblings. In our most recent conversation, my friend described that decision as perhaps the best move the family made. She said that at first she had a hard time getting her father's facility to accept the fact that they should call the care manager first. But having an informed person -- an experienced advocate for her father -- in the community has often been essential, as questions arose over insurance, level of care, medications, transfers between facilities, nutrition and whether to hospitalize. My friend still makes regular trips to visit her father, but the local manager meant there were fewer emergency trips.
Geriatric care managers, sometimes called care coordinators, elder care coordinators, or professional care managers, could -- and perhaps should -- be an increasingly important part of planning. One of the questions about this emerging profession is credentials. At least two national trade groups exist, including the National Association for Professional Geriatric Care Managers (NAPGCM) and the National Academy of Certified Care Managers (NACCM).
In addition, law firms specializing in elder law frequently offer care management services, often employing non-lawyer professionals as part of the team.
Geriatric care management may be very important to "elder boomers," both as they become seniors caring for their even-more-senior-aged parents, and as future care-needing individuals themselves. Unfortunately, a big question may be cost. Medicare and Medicaid -- and most insurance -- does not cover the cost of care management. As reported by the New York Times a few years ago in "Care Coordination: Too Expensive for Medicare?," attempts to secure public funding for care managers has been stymied by studies that show care management does not necessarily reduce the costs of care.
Nonetheless, such coordination may be particularly important in a nation where family members often live far apart. In my friend's situation, she expected the need to last for a couple of years, but in fact, her father is approaching age 98, and the "healthy" relationship between the children, their father and his care coordinator has lasted for more than 10 years.
January 21, 2014 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Medicare | Permalink | Comments (0) | TrackBack (0)
Friday, January 17, 2014
Medicare-covered outpatient physical, speech and occupational therapy services are subject to an annual dollar-amount payment cap. As a result, many Medicare beneficiaries have their therapy terminate prematurely when they reach the cap. While there is an Exceptions process in place that allows beneficiaries to receive therapy in excess of the caps, it is set to expire on March 31, 2014. Moreover, the existing process is burdensome and many providers of services are slow to assist beneficiaries in obtaining therapy cap...
It's time to reduce barriers to care, not exacerbate them. We urge Congress to repeal the Medicare outpatient therapy caps. As recently highlighted by former Congresswoman Gabrielle Giffords, longer-term, ongoing therapy can be the key to functionality and life-changing improvements.Read more about this important topic here.
Thursday, January 16, 2014
We've blogged several times in recent months about state court rulings on enforcement of arbitration provisions in nursing home admission contracts, especially in the wake of the U.S. Supreme Court's ruling in Marmet Health Care Center Inc. v. Brown, 132 S. Ct. 1201 (2012). See here, here and here.
The latest interesting decisions arrived on the same day, January 13, 2014, from the Massachusetts Supreme Court. First, in Johnson v. Kindred Healthcare Inc., the court held that although a "health care agent" operating under a written advance directive had signed the nursing home's admission agreement containing a mandatory arbitration provision governing "all disputes," such action was not an authorized "health care decision," and thus was not binding on the patient under Massachusetts' health care proxy statute.
The court notes that its decision is consistent with the view of the "majority" of courts in other jurisdictions that have considered similar issues, and emphasized the intention of the Massachusetts legislature in framing that state's governing statute:
"We frame the matter differently [than did a contrary decision by the Supreme Court of Tennessee in a 2007 decision]. That a competent principal could have decided to enter into an arbitration agreement does not answer the core question we confront: whether our Legislature intended the term 'health care decision' to include the decision to waive a principal's right of access to the courts and to trial by jury by agreeing to binding arbitration. Our health care proxy statute reflects no such intent."
The Massachusetts Supreme Court was unpersuaded by the nursing home's argument that its decision promotes "uncertainty concerning the scope of a health care agent's authority." The court reversed the trial court order compelling "mediation or arbitration," and remanded for trial on the allegations that the nursing home's negligence caused the death of a resident of the facility.
Second, on the same day, the Massachusetts Supreme Court issued a similar ruling in Licata v. GGNSC Malden Dexter LLC, having earlier transferred that case from the intermediate appellate court on its own initiative. The son's signature as "responsible party" on the contract did not change the outcome:
"[E]ven assuming that Salvatore [the son] qualified as a responsible party for purposes of giving informed consent to medical treatment, this role did not empower him to sign an arbitration agreement on [his mother] Rita's behalf."
Further, the court rejected the nursing home's argument in the Licata case that theories of "ratification," "third-party beneficiary" or "equitable estoppel" compelled arbitration of the personal injury claim, concluding that "no inequity results from denying enforcement of the arbitration agreement."
These decisions show the importance both of statutory authority and careful drafting of documents appointing agents for those wishing "freedom" from mandatory arbitration (hence, the Liberty Bell, courtesy of photographer Bev Sykes). My first reading of these two decisions suggests that attorneys in Massachusetts and states with similar health care decision-making laws will still customize the language of POAs for "general agents" acting under powers of attorney, to make it clear that any grant of general authority does not include authority to bind the principal to mandatory arbitration of nursing home disputes, even if the agent also has authority to make health care decisions. Other thoughts from our readers?
Friday, January 10, 2014
The earliest signs of dementia are often subtle. It can be tempting and easy to brush them off as merely the signs of fatigue or being overwhelmed. Ironically, at the other end of the spectrum, advanced dementia, it may also be easy to jump to conclusions, believing one diagnosis fits all forms of dementia. The modern assumption is probably most often Alzheimer's, while in earlier decades the label might have been simply "senility."
I often ask a medical or gerontology professional with expertise in the various forms of dementia, including Lewy-Body Disease, Frontotemporal Dementia (FTD), Parkinson's related dementia, vascular dementia, as well as Alzheimer's, to speak to my elder law classes. The lectures are fascinating (okay, also a little frightening). But often, near the near the end of a class discussion, a student will ask, "if there is no cure for dementia, does diagnosis of the source really matter?"
A family's search for answers suggests there are may be very good reasons to pursue a definitive diagnosis, even if the ultimate answer is possible only after the death of a loved one impacted by disease. The Ruhrig Family in central Pennsylvania was perplexed by the symptoms and rapid progress of confusion for the patriarch of their family. Sixty-six year old Weston Ruhrig passed away less than a year after the family first began seeing signs of confusion:
"The 6-2, 210-pounder was up by 7 a.m. daily ... seemed always on the move. In June , he conducted a charity auction for United Cerebral Palsy of Central Pennsylvania, just as he had since 1987. He seemed normal.
But his family began noticing odd behavior. Ruhrig became withdrawn. He continually locked doors, sometimes locking out his wife after she had gone to the yard or garage during daylight. Ruhrig was known for harping on people to turn off lights to save electricity. Now he switched on lights for no reason and left the room.
By September , his family had persuaded him to see his family doctor. The doctor found no medical problems but referred him to a neurologist. Ruhrig felt nothing was wrong. In November, the neurologist gave Ruhrig cognitive tests. Ruhrig named the president and recalled facts including his wife’s birth date. But he couldn’t correctly state her age or calculate it. Still, he joked during the visit."
As carefully detailed by Patriot News writer David Wenner, eventually doctors suggested the problem was Alzheimer's. But the family, contrasting their father's symptoms with those of others they knew with more traditional presentations of Alzheimer's related dementia, persisted in seeking a more precise diagnosis. An MRI was viewed as normal. Another test was a spinal tap. Unfortunately, Mr. Ruhrig died suddenly in December 2013, after a fall that led to a rapid decline.
The diagnosis occurred after his death, based on the results of the spinal fluid analysis: Creutzfeldt-Jakob Disease, a very rare variation of the family of diseases associated with "Mad Cow" and "chronic wasting" in deer, but a form that is not considered to be caused by eating or handling contaminated meat. Deterioration associated with the condition is rapid, usually leading to death within a year, and the cause of the disease is currently unknown, and there are no cures.
But the courage of the family in pursuing and talking about the diagnosis could help others, as better understanding of the various forms and causes of dementia should help the larger community of physicians, epidemiologists and other experts chart the frontiers of dementia. Heredity, life-style, diet, viruses, environmental impacts -- with the help of families, all of these factors and others might better be understood in the search for causes and solutions for the different forms of dementia.
For more, read "Hampton Township Man Dies of Mysterious Disease Sometimes Associated with Mad Cow and Chronic Wasting." Thanks to my colleague, Professor Laurel Terry, for pointing me to this interesting local article.
I can remember when tax-savvy couples might plan their wedding dates according to the tax impact, and thus there was talk in political circles about the "Marriage Tax Penalty."
Recently, one of our Elder Law Prof Blog readers wrote to suggest we post articles about the impact of late-in-life marriage on Medicaid eligibility. Good idea! Many might assume that a well-drafted prenuptial agreement should preserve a split in retirement savings. That assumption could well be dangerous -- in the context of Medicaid. Here are links to a few recent articles, with brief excerpts to whet the appetite for reading more:
Late Life Love (Part II), by Monica Franklin, 49 Tennessee Bar Journal 30 (Feb. 2013):
"When discussing prenuptial agreements and marriage, we need to advise our clients that if one spouse needs Medicaid to pay for long-term care, the assets of both spouses will be considered by the Medicaid agency ([Tennessee] Department of Human Services, DHS). However, if the couple chooses cohabitation, DHS only considers the assets of the disabled partner. This information is crucial for couples considering late-life marriage."
Paying for Long-Term Care in Illinois, by William Siebers and Zach Hasselbaum, 100 Illinois Bar Journal 536 (October 2012), noting that with changes to Medicaid law, effective in Illinois in 2012:
"Eligibility for long-term care assistance will be denied [in Illinois] if the community spouse or institutionalized spouse refuses to disclose assets during the application process. Prior to this change, a community spouse with separately owned assets held for at least five years could decline to have those assets considered in the application process for the institutionalized spouse. This scenario commonly arose in second marriage situations. . . . "
Gray Divorce and Remarriage, by William DaSilva and Steven Eisman, 83 New York State Bar Journal 26 (July/August 2011):
"Another growing trend in the practice of elder law -- relating to both matrimonial law and health care planning -- is the use of so-called 'Medicaid divorces.' In fact, the use of Medicaid gifting and Medicaid planning received judicial sanction from New York's highest court in 2000 in [the case of] In re Shah, [95 NY 2d 148 (2000)]. In this type of divorce, the 'spouse in the community' ... stands to lose a lifetime's worth of savings unless a health care plan is devised that provides care for the ill or incapacitated spouse and simultaneously protects the assets of the spouse in the community so that both spouses do not end up impoverished wards of the state. A prenuptial agreement alone will not defeat a claim of Medicaid."
In my admittedly quick search for articles on the topic of prenuptial agreements and Medicaid, I did not find a comprehensive discussion by academics or law students in an academic law review. Rather, as suggested by the above citations, the articles I found were all state specific, from state bar journals. Perhaps one of our law school colleagues has a work-in-progress or article to share? Or, alternatively, perhaps some of our academic readers are looking for a good, comprehensive research topic for the future.
For our lay readers, this is a good opportunity to remind you this Blog is not intended to be a source of legal advice for specific issues. Of course, we do recommend that you consult with an experienced elder law attorney for state-specific advice!
Thursday, January 9, 2014
The National Bureau of Economic Research has released 2013/Vol. 2 of the Bulletin on Aging and Health. The 2013 No. 2 Bulletin includes the articles below:
1) The Value of Medicaid to Older Households
by Mariacristina De Nardi, Eric French, and John Bailey Jones
2) Who Uses the Roth 401(k)?
by John Beshears, James Choi, David Laibson, and Brigitte Madrian
3) Do Financial Incentives Induce Disability Insurance Recipients to Return to Work?
by Andreas Kostol and Magne Mogstad
Also: Abstracts of Selected Recent NBER Working Papers
NBER Profile: Michael Baker
View a printable PDF copy of the 2013 No. 2 NBER Bulletin on Aging and Health here.
The HTML version is available at the Bulletin's homepage.
Wednesday, January 8, 2014
Bloomberg News writers Alex Nussbaum, Alison Vekshin and Gigi Douban offer a timely article, available on the MSN website, titled "Obama Medicaid Split Creates Two Americas for the Poor." The article opens by contrasting the impact of states deciding whether to expand the availability of Medicaid, using the experiences of two women, one in California and one in Alabama, each facing health care crises:
"The women’s fates are the consequence of a political debate that’s divided the U.S. roughly along party lines: Democratic-led states have expanded Medicaid programs for the poor under the health law; most Republicans have refused. While the law’s online exchanges draw more scrutiny, it’s Medicaid that may determine the health of millions of Americans. The expansion is one of the twin pillars created by the law to supply medical care to the nation’s uninsured, complementing subsidies for private insurance."
The article also has useful links to health policy and economics studies, as well as commentary by political leaders, including Pennsylvania's former Governer Ed Rendell.
Monday, January 6, 2014
Catching up after a busy weekend at the Association of American Law Schools (AALS) Annual Meeting 2014 in New York City, I'm happy to report the presentations at the Section on Aging and the Law seemed to go smoothly and were well received, with a very engaged audience. While the weather made travel to and from NYC a bit tricky, it also seemed to "encourage" strong attendance at sessions. (I found myself skating even when not visiting the rink at Rockefeller Plaza!)
Section Chair Susan Cancelosi (Wayne State) was snowed out -- but I suspect Susan would be pleased by the reaction to the program she planned. Thank you, Susan, for putting together the theme, securing speakers, making sure we were all on track, and creating a back-up weather plan. We've decided you should be the moderator next year, if you don't mind!
Dick Kaplan (Illinois) led off the panelists, using his best "Dr. Phil" style to walk us through (both literally and metaphorically) the latest changes to Medicare triggered by the Affordable Care Act and other recent legislation. Recognizing that many in our audience do not teach elder law or health care law, Dick offered information useful to all academics who "expect" to retire. For example, recent information from the Employee Benefit Research Institute supported his forecast that a 65-year old person retiring in 2012 would need substantial saving just to cover out-of-pocket medical expenses, in the range of $122,000 -$172,000 for men and between $139,000 - $195,000 for women (with projections also affected by prescription drug usage). Dick reminded us that this figure does NOT include any costs for long-term care.
Next on the panel was Laura Hermer (Hamline), who is new to our Section -- and a very welcome addition. Using her health law background, Laura outlined the maze of programs, including state plan innovations and waiver programs under Medicaid, that may provide "long-term services and supports" (or LTSS -- the latest acronym that seems to be an intentional step away from a "care" model) for older persons. Her presentation emphasized the shift to home or community based care, but Laura made clear that this shift depends heavily on unpaid care by family members.
Incoming Section Chair Mark Bauer (Stetson) made effective use of visual images of 55+ communities in Florida to demonstrate his concern that exemptions from civil rights protections that permit age-restricted communities may not be matched by actual benefits for the older adults targeted as residents. Mark stressed the percentage of housing that is not designed to match predictable needs for an aging population. Examples included multi-story designs without elevators, steps into even ground-level units, and bathrooms without wheel-chair accessibility. Mark's presentation expanded on his recent article in the University of Illinois' Elder Law Journal.
Speaking last, my topic was the latest state law developments tied to federal laws that authorize nursing homes to compel a "responsible party" to sign a prospective resident's nursing home contract. States are creating potential personal liability for costs of care for family members, agents or guardians, or transferors or transferees of resources, if the resident is deemed ineligible for Medicaid. Here are links to a copy of the slides I used for my presentation on "Revisiting Nursing Home Contracts," as well as to a related short article I was invited to write for the Illinois State Bar Association's Trusts & Estates Section in December 2013.
The panel presentations were followed by great questions and observations from the audience, further highlighting the financial challenges of aging. Plus, it was wonderful to see several new members volunteering to join the planning committee for future programs for the Aging and Law Section of AALS. And welcome back to the board to Alison Barnes (Marquette Law).
January 6, 2014 in Consumer Information, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Programs/CLEs, Retirement, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, January 2, 2014
A recent, interesting "over the transom" email came from a continuing care provider group based in southern Texas. Morningside Ministries was the sender, listing its "top 5" free videos, available on its mmLearn.org website. All five had interesting descriptions -- some addressing provocative and underdiscussed topics -- and when I took a look, I found them professionally presented, often with a welcome dash of humor to lighten the mood. I could see using one or more to initiate class discussions, additional research or conversations.
Here's the list and the links, although in the interest of space, I've shortened the descriptions:
Caring for a sometimes hateful or difficult patient can be difficult, and it can take a toll on the caregiver. .. Dr. Weiss will help you understand some of the reasons for this behavior as well as give you tips for dealing with the difficult situation.
Wednesday, January 1, 2014
University of Illinois' Richard Kaplan will lead off the presentations at AALS's Aging and Law section meeting later this week. The theme of the program is "From the Affordable Care Act to Aging in Place: What You Need to Know as You Grow Older."
Professor Kaplan's presentation will focus on Medicare, and he has a practical focus, relevant to all AALS attendees (either sooner or later!). He observes, "Paying for health care costs in retirement is very different from what most academics have experienced during their working lives. This session will explain the four distinct Parts of Medicare and the various decisions that retirees must make regarding the coverages they want and the costs those decisions entail."
Dick is well-known to elder law faculty and to the broader world of health-care and retirement income scholars, both nationally and internationally. His article "Top Ten Myths of Medicare," published in 2012, is one of the leading downloads on SSRN.
The Aging and the Law Section panel program runs from 3:30 to 5:15 on Friday, January 3, with a short Section Business meeting after the program.
Professor Morgan blogged about this interesting NYT article earlier, but I want to highlight a portion of Jessica Silver-Greenberg's "Winning Veterans' Trust, and Profiting From It." The article is especially critical of "actors" active in representing or promoting VA benefits for aging veterans, including "lawyers, financial advisers and insurance brokers."
"Questionable actors are capitalizing on loose oversight to unlock the V.A. money and enrich themselves, sometimes at veterans’ expense. The V.A. accreditation process is so lax that applicants provide their own background information, including any criminal records. But the V.A. has only four full-time employees evaluating the approximately 5,000 applications that it receives annually. Once people get the V.A.’s stamp of approval, they rarely lose it, even if a customer complains or regulatory actions mount. Last year, the V.A. revoked its accreditation for two of its more than 20,000 advisers."
But it is one thing to question the standards for accreditation for individuals to represent or assist applicants for VA benefits. It strikes me there is an irony to the fact that the VA requires accreditation in order to serve as a paid advisor, yet that very accreditation is, according to the article, apparently part of the problem.
It seems to me the history described in the article also suggests the very real importance of VA benefits to individuals, especially those struggling to afford long-term care, such as 86-year-old Henry Schaffer, who seems to be in that gray zone of just enough inome to be "ineligible" for VA benefits, but not enough income to afford to pay privately. Thus, the arguable need for "planning." The article has a mixed message, one that I tend to question, as the article seems to imply that the increased rate of usage of VA benefits is due primarily to improper benefit awards, secured by manipulative "players" rather than experienced consultants working within the rules.
I noticed that the comments to the article are as interesting as the article itself, pointing to the need for better public understanding of VA benefits (including the availability of benefits for spouses of former members of the service). The comments highlight the consequences of close calls on ineligibility, and therefore also emphasize the need for qualified legal or other knowledgeable assistance.
Monday, December 30, 2013
Much of the national media attention on the Affordable Care Act has focused on those who were previously uninsured or those who must change policies and coverage. But there are also important studies emerging on how the ACA will affect seniors.
At the AALS annual meeting in New York City, Hamline University School of Law's Laura Hermer will address changes to Medicaid in the Affordable Care Act that impact elders, most notably concerning long term care and care coordination for "dual eligibles." Professor Hermer will also discuss some of the many problems for beneficiaries that remain or, in some cases, may be created following ACA-related changes.
Professor Hermer has two new articles scheduled for publication in 2014, including "Enterprise Liability: Medical Malpractice Reform in the Service of Improved Health Care Quality and Outcomes," to be published in the Journal of Health Care Law and Policy, and "The Future of Medicaid Supplemental Payments: Can They Promote Patient-Centered Care?," co-authored with Dr. Merle Lenihan of University of Tennesseee, to be published in the Kentucky Law Journal.
Laura's ACA forecast presentation will be part of the panel assembled by Wayne State Law Professor Susan Cancelosi for the Aging and Law Section at the AALS meeting on Friday, January 3, scheduled to begin at 3:30 p.m.
Sunday, December 29, 2013
Washington Post reporters Peter Whoriskey and Dan Keating use more than ten years of data from California to provide a detailed portrait of hospice, with national implications, concluding that providers are pursuing "healthier" patients to increase their margin. While acknowledging the importance of Medicare-supported hospice for individuals legitimately diagnosed with less than six months to live, the Washington Post article uses survival rates to suggest manipulation of the diagnosis for financial gain:
"[T]he survival rates at AseraCare are emblematic of a problem facing Medicare, which has created a financial incentive for hospice companies to find patients well before death. Medicare pays a hospice about $150 a day per patient for routine care, regardless of whether the company sends a nurse or any other worker out on that day. That means healthier patients, who generally need less help and live longer, yield more profits.
The trend toward longer stays on hospice care may be costing Medicare billions of dollars a year. In 2011, nearly 60 percent of Medicare’s hospice expenditure of $13.8 billion went toward patients who stay on hospice care longer than six months, MedPAC, the Medicare watchdog group created by Congress, has reported."
For the full Washington Post story, itemizing factors contributing to misuse of hospice, see "Hospice Firms Drain Millions from Medicare."
Thursday, December 26, 2013
Hard to believe, but AALS Annual Meeting 2014 is just around the corner. Aging & Law Section Chair Susan Cancelosi (Wayne State Law) has planned a great program, and we look forward to the interaction between panel members and the audience.
The theme is "From the Affordable Care Act to Aging in Place: What You Need to Know as You Grow Older."
Mark Bauer (Stetson Law) on "Aging and 55+ Age-Restricted Housing."
Laura Hermer (Hamline Law) on "changes to Medicaid under the Affordable Care Act that impact the elderly, with particular attention to several state implementations of relevant state plan options and demonstration projects involving dual eligibles and others."
Richard Kaplan (Illinois Law) on “the very different world of financing health care that awaits retirees, including how to navigate the various Parts of Medicare and their attendant problems.”
Katherine Pearson (Penn State Law) will discuss "the emerging trend of states adopting laws authorizing nursing homes to collect unpaid debts from family members or fiduciaries."
I'll provide more details about the individual speakers' programs, both before and after the event. But remember to mark your calendar for New York City, on Friday, January 3, at 3:30-5:15. As always, there will be a short business meeting following the presentations and discussion.
Tuesday, December 24, 2013
I've been reading discussions lately on elder law listservs, debating whether nursing homes' attempts to hold family members contractually liable to pay bills violate the Nursing Home Reform Act's bar on mandatory third-party guarantees of payment.
This issue was addressed recently by the United States District Court for the Western District of Pennsylvania in White v. Jewish Association on Aging, where a pro-se plaintiff alleged a violation of NHRA at 42 U.S.C. §§ 1395i-3(c)(5)(A)(ii) and 1396r(c)(5)(A)(ii), tied to allegations that his mother's nursing home required him to sign the admission agreement for his mother.
The U.S. District Court dismissed the suit, rejecting NHRA as permitting a private right of action, but then also addressing the specific "guarantee" issue urged by the son:
"In signing the Admissions Agreement and agreeing to become the Responsible Party... Plaintiff consented to apply Ms. White's financial resources to cover her care.... The Agreement also explicitly states that the Responsible Party's failure to apply a Resident's income and assets to pay for the care would result in the Responsible Party becoming personally liable—not for the bill itself— but 'for any misappropriation or misapplication of Resident's funds or assets.' Plaintiff makes no allegation that Defendant is doing anything other than what is expressly permitted—requiring him to apply Ms. White's finances to cover her costs. Thus, Plaintiff is not being treated as a guarantor, and his claim should be dismissed." (citations ommited)
Hat tip to Rob Clofine, Esq. of York, Pennsylvania for the White case link.