Wednesday, February 18, 2015

Questions Raised by Doctor's Guilty Plea for Kickbacks from Prescribing Risky Drugs to Seniors

A long-running investigation of a doctor in Illinois for Medicaid and Medicare fraud is coming to a close.  Michael Reinstein, "who for decades treated patients in Chicago nursing homes and mental health wards," has pleaded guilty to a felony charge for taking kickbacks from a pharmaceutical company.  As detailed by the Chicago Tribune, on February 13, Reinstein admitted prescribing, and thus generating public payment for, various forms of the drug clozapine, widely described as a "risky drug of last resort."

The 71-year old doctor has been the target of the state and federal prosecutors for months, and he's also agreed to pay (which is, of course, different than actually paying) more than $3.7 million in penalties.  He may still be able to reduce his prison time from 4 years to 18 months, if he "continues to assist investigators."

The investigation traces as far back as 2009, as detailed by a Chicago-Tribune/ProPublica series that revealed he had prescribed more of the antipsychotic drug in question to patients in "Medicaid's Illinois program in 2007 than all doctors in the Medicaid programs of Texas, Florida and North Carolina combined."  Further, the Tribune/ProPublica series pointed to autopsy and court records that showed that, "by 2009, at least three patients under Reinstein's care had died of clozapine intoxication." Reinstein's, and one assumes, the pharmaceutical company's, defense was that the drug could have appropriate, therapeutic effects for patients, beyond the limited "on-label" realm.

Assuming that the government ever sees a dime in repayment, from either the doctor or the drug company, my next question is what happens to that money?  At a minimum, shouldn't there be review of the effect of the drugs on these patients, some of whom may have been administered the drug for years? We keep reading that the drugs are "risky," but shouldn't there be evidence of real harm -- or perhaps even benefit -- from the documented "off-label" use?  Certainly, prosecutions for off-label drugs are understandable attempts to claw-back, or at least reduce, public expenditures. But isn't more at stake, including the search for relief or workable solutions for patients who are in distress? 

In March 2014, for example, Teva Pharmaceutical Industries Ltd., the maker of generic clozapine, reportedly agreed to pay more than $27.6 million to settle state and federal allegations that it induced Reinstein to prescribe the drug. Recovering misspent dollars is important.  But I also would like to see evidence of the harm alleged by the government -- or the benefit asserted by the defendants -- from the administration of the drugs.  Isn't objective study of the history of these real patients a very proper use of the penalties? 

February 18, 2015 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases | Permalink | Comments (0) | TrackBack (0)

Monday, February 16, 2015

Canadian Centre for Elder Law in Vancouver: Call for Abstracts for November 2015 Conference

The Canadian Centre for Elder Law and the British Columbia Law Institute have extended a call for panel proposals for their November 2015 Elder Law Conference in Vancouver. Canadian Centre for Elder Law 

The themes for the two day conference are: 

November 12 (Day 1): Connecting Across Discipline and Geography:

Join practitioners from law, social work, health care, finance, non-profit and other sectors from across the country and around the world to talk about the challenges and issues involved in working with older adults.  Particular topic areas we are seeking include:

  •  elder abuse,
  • assisted living and retirement housing,
  • financial abuse,
  • guardianship,
  • pensions,
  • age friendly communities,  and
  • outreach strategies. 

November 13 (Day 2): Key Practice Challenges and Hot Topics in Legal
Practice:


Explore issues engaged in powers of attorney and substitute decision-making, health care decision-making and end of life care, mental capacity and dementia, elder abuse and neglect, and other challenging subjects that arise in representing older adults and their families.

Contact National Director Krista Bell with any questions, and additional details, including submission information are available here.

February 16, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, International, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)

Friday, February 13, 2015

Television Investigative News Report Focuses on N.H. Lobby in Pennsylvania

 

WTAE-TV in Pittsburgh, offers an inside look into the alleged role of nursing home lobbyists associated with the Pennsylvania Health Care Association (PHCA) in crafting a notice posted by the Pennsylvania Department of Health, stating that its inspection survey reports "are not intended to be evidence of compliance with any legal standard of care in third-party litigation."  (According to WTAE-TV, an original "disclaimer" label on the notice was recently changed by the Department of Health to "explainer.")

Here's a link to coverage, including an article and video, at WTAE-TV: "Emails reveal nursing home lobbyists pressuring state on lawsuits -- Inspection reports not allowed in lawsuits?"

UPDATE:  Here is a link to the Pennsylvania Department of Health's nursing care facility locator website, where a detailed "Explanation" of the survey inspection process appears.  The notice includes the language quoted by the news report above, and appears the first time you access that website.  However, once you press "okay" on the notice, it disappears. 

Additional Update: Here is another link to "just" the explanation.  As several readers commented, the location of this explanation on the Department of Health website is potentially  confusing, as it appears to apply to any Medicaid or Medicare provider that is subject to inspections, but the title on the page as of today's date says "except nursing homes."

February 13, 2015 in Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, February 12, 2015

Administration on Aging Issues New Rules on States' Long-Term Care Ombudsman Programs

New rules from the "Administration on Aging of the Administration for Community Living." Honestly, is that the longest title for any unit in federal government? AoA and ACL operate under the Department of Health and Human Services (HHS) and recently issued new final rules governing Long-Term Care Ombudsman Programs.  

Ombudsmen have traditionally had important roles to play as advocates for elderly or disabled residents in facility-based care.

The new rules complete the process of approval that commenced with proposed rules in June 2013.  The effective date for the new rules -- deferred to permit implementation and training -- is July 1, 2016.

In a recent email to interested stakeholders, David Godfrey, senior attorney at the ABA's Commission on Law and Aging, comments positively on the new rules:

"Exciting news! ... A culmination of several years of collaborative work with our partners, this rule guides implementation of the portions of the Older Americans Act governing grants to states for operation of Long-Term Care (LTC) Ombudsman programs.

  • Key issues this rule addresses include:
  • Responsibilities of key figures in the system, including the Ombudsman and representatives of the Office of the Ombudsman;
  • Responsibilities of the entities in which LTC Ombudsman programs are housed;
  • Criteria for establishing consistent, person-centered approaches to resolving complaints on behalf of residents;
  • Appropriate role of LTC Ombudsman programs in resolving abuse complaints; and
  • Conflicts of interest: processes for identifying and remedying conflicts so that residents have access to effective, credible ombudsman services."

As noted in the introduction to the new rules, a major reason for the change is to achieve better consistency across the nation, while still preserving the "independence" that has been a hallmark of the best programs. 

Continue reading

February 12, 2015 in Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 10, 2015

Pennsylvania Inspector General Reports $1.8 Million Recovery of Long-Term Care Funds

As picked up by several news media sources, Pennsylvania's Office of Inspector General (OIG) released a statement on February 9, 2015 reporting that "from September 2014 through December 2014, [OIG] recovered more than $1.8 million in taxpayer funds from individuals who were ineligible to receive long term care benefits."

Further, OIG reported these actions resulting in "over $709,000 in cost savings for the same period.  Cost savings represent future use of commonwealth funds that would have been expended for Long Term Care services on behalf of an ineligible individual."

The timing of this press release strikes me as interesting.  I don't recall seeing a three-month report before, nor does the press release disclose any details about the number of "ineligible" individuals this report represents. The recent press release merely states:

"In some instances, individuals or their personal representatives fail to disclose to the commonwealth income and/or assets such as real estate, stocks, or pensions in order to qualify the individual for Medical Assistance benefits."

OIG makes an annual report on investigations and recoveries of all state funds, including long-term care.  Pennsylvania's 2013-2014 Fiscal Year Annual OIG Report includes a statement that OIG "collected and cost avoided in excess of $9.9 million in long term care benefits." The conflating of recovery of "past" improper payments with "costs avoided" in the annual report makes it difficult to compare the more recent three-month report, covering the end of the calendar year, to determine whether it represents a significant change. 

It is probably worth noting that the OIG head in 2014 was an appointee of outgoing Republican Governor Tom Corbett, while the new Pennsylvania Governor, with new appointments to make, is Democrat Tom Wolfe.

February 10, 2015 in Health Care/Long Term Care, Medicaid | Permalink | Comments (2) | TrackBack (0)

Monday, February 9, 2015

Register Now-Webinar on Observational Measure of Elder Self-Neglect

NAPSA, NCCD  and NCPEA are offering another Research to Practice webinar on March 9 . This webinar is on Observational Measure of Elder Self-Neglect.

Here is a description of the webinar

Elder self-neglect (ESN) represents half or more of all cases reported to adult protective services. ESN directly affects older adults and also their families, neighbors, and the larger communities around them. ESN has public health implications and is associated with higher than expected mortality rates, hospitalizations, long-term care placements, and localized environmental and safety hazards.

This webinar will describe results from a study using concept mapping to create a conceptual model of ESN and the items needed to measure it. ESNA indicators of self-neglect align into two broad categories: behavioral characteristics and environmental factors, which must be accounted for in a comprehensive evaluation. Discussion will focus on the clustering of items into the two categories and on the hierarchy of items which should represent severity of self-neglect.

To register, click here.

February 9, 2015 in Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Programs/CLEs, Webinars | Permalink | Comments (0) | TrackBack (0)

Why Law Students Should Know About Long-Term Care Insurance...

Recently Elder Law Attorney Bob Anderson from Marquette, Michigan, spoke to law students at Dickinson Law on the theme of "planning" and his presentation stressed the importance of understanding long-term care insurance or, because our world loves acronyms, "LTCI."  Robert Anderson, Esq., Marquette Michigan

Bob used his thirty years of experience in counseling families to outline key points, and to explain factors that have impacted the LTCI industry.  I asked the students to summarize what they found to be most interesting and important.  Their "takeaway" highlights included:

  • LTCI is an important consideration, part of the same evaluation for insuring against "unacceptable" losses, that should take place in deciding whether to insure against home fires or early death, recognizing that such events are "unlikely" to happen, but can happen to a significant percentage of the population;
  • LTCI has a "cost of waiting," both in terms of the potential to become "uninsurable" because of a disqualifying medical condition arising, and because of the cost increase in first time premiums as you get closer to the age of potential need; and
  • The cost of LTCI has several important variables, which lawyers can help families understand when advising about planning options, including the term of coverage (e.g., 1, 3 or 5 years), the "elimination" period, the interaction with Medicare's 100 day maximum for post-acute care, and the need to consider inflation protection for the daily benefit.

Bob also talked about "hybrid" insurance products, combining life insurance with an LTCI option. I think it is safe to say that regardless of their goals after graduation, all of the law students came away with an appreciation for the need to understand all available options, including LTCI, in planning or advising for post-retirement needs. 

One of our students, who is thinking about general practice, said that he can see clients asking questions about LTCI.  Bob was excellent at reminding all of us that effective elder law and estate planning attorneys address more than just what happens after death. 

Bob, whose diverse interests include cross-country ski racing and hockey, also provided a bit of surprise during his visit when he began speaking Russian -- and, I think, Ukrainian -- with our Russian and Ukrainian Law expert, Bill Butler.

We especially appreciate Pennsylvania elder law attorney Amos Goodall and the National Elder Law Foundation (NELF) for their roles in making this interactive program possible; the recording will be available to practitioners in the future through NELF's educational arm. Amos also addressed our students, adding important Pennsylvania specifics to the discussion.

In a timely coincidence, AARP has a newly published Money Column, on "Should I Buy Long-Term Care Insurance?" 

February 9, 2015 in Consumer Information, Health Care/Long Term Care, Legal Practice/Practice Management, Medicare, Programs/CLEs, Retirement | Permalink | Comments (0) | TrackBack (0)

Friday, February 6, 2015

"The 4% Fallacy" in Long-Term Care Statistics

H. R. Moody edits an electronic newsletter, called "Teaching Gerontology," under the auspices of the Creativity, Longevity & Wisdom Program at Fielding Graduate University in Santa Barbara, California.  It is distributed by the Association for Gerontology in Higher Education. A recent newsletter contained this interesting item:

"We've all heard that famous statistic: only 4% of people over 65 are in a long-term care facility (sometimes called simply "nursing home").  But there's a reason why this statistic has been called the "4 Percent Fallacy." The reason is that it's simply a cross-sectional figure, a snapshot at a single point in time. What is the likelihood of being in a long-term care facility when we look at it  longitudinally, that is, over the life-course?  The bad news is that the risk is not 4% but more like 50%: 44% for men and 58% for women.   The good news is the stays in a nursing home may not necessarily be long: 11 months for a single man and 17 months for a single woman."

H.R. Moody suggests that for more details, visit:http://crr.bc.edu/briefs/long-term-care-how-big-a-risk/

Further, he notes that CRR's calculation of average length-of-stay has been challenged and is worth closer examination:  http://centerltc.com/bullets/latest/1070.htm 

February 6, 2015 in Consumer Information, Health Care/Long Term Care, Statistics | Permalink | Comments (0) | TrackBack (0)

Thursday, February 5, 2015

Good Advice for All Professionals about Empathy

Eleanor Feldman Barbera, a long-term care psychologist, writing for professionals in long-term care settings, offers wise advice that is relevant  for any professional, about the importance of empathy and validation in addressing client concerns.  She begins:

"As a long-term care psychologist, one of my main tasks is to sit down and talk in-depth with residents on a regular basis. I've basically conducted 20 years of focus groups. The single most common comment I've heard from residents over the years: 'I never thought I would end up in a place like this.'

 

While it's probably not the case for people who entered swanky continuing care retirement communities of their own accord well in advance of a health crisis, many residents feel like it's a personal failure to be in long-term care. They think if they'd done something different, or earned more money, or if they'd had children, or had a better relationship with their children, or if they had better children, or something, then they wouldn't have 'ended up' in a long-term care home."

For her specific advice, read "Addressing Residents' Deepest Fears," from McKnight's Long-term Care News.

February 5, 2015 in Health Care/Long Term Care, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 4, 2015

Part 2 of "Death of a Black Nursing Home" - Medicaid's Racism

Part 2 of the provocative New America Media series on "Death of a Black Nursing Home," describes a pervasive, discriminatory impact by states in deciding how to use Medicaid funding for health and long-term care.  In "Why Medicaid's Racism Drove Historically Black Nursing Home Bankrupt," Wallace Roberts writes:

"About 90 percent of Lemington’s residents were Medicaid recipients. The industry’s average, however, is 60 percent, so Lemington’s mission of providing care for low-income people from the area put it at a competitive disadvantage.

Lemington’s over-reliance on Medicaid was the principal reason its debt grew from a few hundred thousand dollars in 1984, to more than $10 million, including a $5.5 million mortgage on a new facility in 1984.

Pennsylvania’s Medicaid payments for nursing home reimbursement were too low to enable the home to hire enough trained staff. Lemington’s former human resources director, Kevin Jordan, noted that the home was “always scrambling to cover payroll” and spent lots of money on 'legal fees fighting the union.'”

The article details serious mistakes made by individuals in the operation of Leimington Home for the Aged, but also points to essential problems in Medicaid funding that doomed the facility to failure.  The author calls for reforms, including a consistent, national approach to long-term care funding, to eliminate -- or at least reduce -- the potential for misallocation of money by states:

"Although the leadership of Lemington Home must bear the responsibility for those legal judgments and the fate of an important institution, the racist history imbedded in Medicaid’s rules for the past 80 years should share the brunt of the blame for bankruptcies at hundreds of long-term care homes largely serving black, latino and low-income elders.

One needed change would be to award nursing homes in African American, Hispanic and low-income neighborhoods serving large numbers of Medicaid recipients larger “disproportionate share payments.” Under the law, such homes receive additional reimbursements for serving a larger-than-usual proportion of very poverty-level residents. But the higher rate also doesn’t kick in unless a facilty has at least a 90 percent occupancy rate, which many homes like Lemington can’t easily reach. Rules relaxing that standard would bring badly needed revenue to vulnerable homes.

Congress could also require that all nursing homes accept a minimum number of Medicaid patients so as to spread the financial burden.

But to truly do the job, Medicaid should be federalized—taken out of the hands of state and local officials, many of whom use get-tough rhetoric in elections to stigmatize and punish often-deserving people...."

The full articles are interesting -- we will link to any future parts of this bold series.

February 4, 2015 in Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 3, 2015

New Series Examines Impact on Minorities of "Flawed Scheme" for Funding Long-Term Care (Part 1)

This Blog has followed the complicated recent history of bankrupt Lemington Home for the Aged, in Pittsburgh, with posts here and hereNew America Media, a national association of over 3000 ethnic media organizations, has begun an important, multi-part series examining the "impoverished history of race" in long-term care for persons of color.  The Lemington Home becomes a case study.  The series is titled The Death of a Black Nursing Home.

"[W]hat happened to Lemington is not uncommon. Researchers at Brown University found that more than 600 other nursing homes in African American, Hispanic and low-income neighborhoods also went bankrupt during this period.

Their study examined the closings of more than 1,700 independent nursing homes between 1999-2009 and found that those located in largely ethnic and low-income communities were more likely to have been closed, mostly because of financial difficulties.

Specifically, nursing homes in the zip codes with the highest percentage of blacks and Latinos were more than one-third more likely to be closed, and the risk of closure in zip codes with the highest level of poverty was more than double that of those in zip codes with the lowest poverty rate."

Observing that "Medicaid homes can't compete" successfully, the article examines reimbursement rates under Medicare and Medicaid and the disproportionate effect of underfunding on minority communities. 

"The principal authors of the study, Vincent Mor and Zhanlian Feng, both of Brown at the time (Feng is now at the Research Triangle Institute), noted 'closures were more likely to occur among facilities in states providing lower Medicaid nursing home reimbursement rates.' That left these homes without the resources they needed to compete successfully in an industry experiencing an oversupply of beds and intensified competition....

 

While Medicaid reimbursement rates vary by state, they are always below Medicare’s reimbursement levels or the fees charged to people who pay for their own care.  The demise of Lemington and other nursing homes in minority and low-income neighborhoods is a direct result of this flawed payment scheme. However, large for-profit nursing home chains, some of which are owned by private equity companies and real estate investment trusts, can maximize profits by using expensive and aggressive marketing practices to cherry pick the wealthier residents in a given area while reducing the number of their own Medicaid clients.

Medicaid’s payment structure also has impacted the quality of care in nursing homes with predominantly minority residents."

We will link to the next parts of the series as they become available.

February 3, 2015 in Consumer Information, Discrimination, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

2,000 Veterans Wait In Line to Get Nursing Home Care In Missouri

From WGEM.com in Hannibal, Missouri, coverage on "2,000 Veterans Waiting in Line to Get Into Missouri Nursing Homes,"

"Some wait more than a year to get full care covered through veteran's benefits, and it's even harder for veterans without a state home close to where they live because they have even fewer options.

 

'I had to have a place to go, so they got me in,'  Army veteran Robert Johnson said. Johnson is at Beth Haven Nursing Home in Hannibal for the time being. He had to choose a private care facility because there are relatively no veteran's homes in the area. 'Oh yeah, it's pretty expensive to stay here,' Johnson said. 'I think they ought to have something to help veterans out. A lot of people have a pretty hard time anymore.'

 

Veterans who pay for private care do get supplemental money through benefits, and those using Medicaid also get personal allowance, but sometimes it's not enough. Beth Haven CEO Paul Ewert says there are some cases where families have to either pay out of pocket or travel hours away for full care."

February 3, 2015 in Health Care/Long Term Care, Housing, Veterans | Permalink | Comments (0) | TrackBack (0)

Saturday, January 31, 2015

And Now, Some Happier News About Nursing Homes...

It strikes me that a lot of my posts this week about long-term care have been "bad news," especially regarding nursing homes.  It is a good time for me to share a much happier view from a daughter who first wrote to me about her fears as an adult daughter -- with health care concerns of her own -- living 3,000 miles away from her father, who at 90+ was in crisis and needed daily help, but was unable to afford it. Loving Daughter and Dad 

Her dad had a local person as an agent, a long-time friend's child who held "power of attorney." But that individual seemed overwhelmed.  When the daughter wrote to me, I encouraged her to talk to her father, who still had capacity.  Four months later, the daughter wrote back to give the results, including the very good news that her father was happier. She gave me permission to share details here:

"Since last September ... I was able to get my father completely on Medicaid and everything went through well with his application, etc.  He got accepted the first time!  I hear that can be rare. Additionally, my Dad met with his attorney and revised his POA, making me his agent and allowing me to do many things, even from afar.

 

Dad's very happy now and quite healthy (at age 91) in his new skilled nursing home environment in Pennsylvania.  Even from 3,000 miles away, I am still very connected to him, as well as the wonderful staff at the nursing home.  My Dad is now 3rd generation of his family to stay at that same nursing home. Additionally, he now has the company of his youngest sister, my Aunt, who has been at the home for the last 10 years.  They are together and enjoying each other's company every day."

A short time later, the daughter wrote again:

"I have such peace of mind, and heart, knowing this is the right place for Dad, plus, he has so much more socialization now and is no long isolated and all alone in his apartment where he was before.  (I no longer lay awake every night worried about him with knots in my stomach.) Plus, I forgot to mention the facility has a resident dog on site, a golden retriever named 'Magoo,' and, boy, does he brighten everyone's day."

This daughter's words are an important reminder that the "right" place, including the right nursing home, can make dramatic improvement in the lives of older persons, especially where frailty and isolation are the concerns. Thank you, Patti, for sharing your "happier" news.

Postscript:  Patti allowed us to share a photo of her and her father, and the story of their relationship is written in their smiles. 

January 31, 2015 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Medicaid | Permalink | Comments (0) | TrackBack (0)

Thursday, January 29, 2015

Additional Discussion of Use of Guardianships as Nursing Home Collection Tool

On Monday, we linked to the front-page New York Times article by Nina Bernstein, "To Collect Debts, Nursing Homes Are Seizing Control Over Patients."  Suffice it to say, I've been hearing a lot about the topic, from many sources.  In hearing from law professors and lawyers with different perspectives, it appears there are at least three important questions framed by the article. Each may take additional investigation to fully address, whether in New York or other states where similar concerns have been raised.

In one of the cases described by the NYT, a court opinion addresses what appears to be the nursing home's narrow "collection" purpose in seeking a guardianship.  The article summarizes:

"Last year Justice [Alexander W.] Hunter did appoint a guardian in response to a petition by Hebrew Home for the Aged at Riverdale, but in his scathing 11-page decision, he directed the guardian to investigate and to consider referring the case for criminal prosecution of financial exploitation.

 

The decision describes a 94-year-old resident with a bank balance of $240,000 who had been unable to go home after rehabilitative treatment because of a fire in her co-op apartment; her only regular visitors were real estate agents who wanted her to sell. After Hebrew Home’s own doctor evaluated her as incapable of making financial decisions, the decision says, the nursing home collected a $50,000 check from her; it sued her when she refused to continue writing checks, then filed for guardianship. 'It would be an understatement to declare that this court is outraged by the behavior exhibited by the interested parties — parties who were supposed to protect the person, but who have all unabashedly demonstrated through their actions in connection with the person that they are only interested in getting paid,'  he wrote.

 

Jennifer Cona, a lawyer for the nursing home, called the decision 'grossly unfair to Hebrew Home,'  but said she could not discuss details because the record was sealed."

Here is a link to the full opinion in the case, publically available on Justia.com.  

Two additional cases raise similar issues and are referenced in the New York Times.  Both have opinions by  Judge Hunter:

Matter of G. S., 17 Misc.3d 303; 841 N.Y.S. 2d 428 (Sup. Ct., New York County 2007), and

Matter of S.K., 13 Misc.3d 1045; 827 N.Y.S.2d 554 (Sup. Ct. Bronx Cty., 2006).

In both cases, Judge Hunter concluded the purpose for which the guardianship petitions were filed by the nursing home as petitioner was "not the legislature’s intended purpose when Article 81 of the Mental Health Law was enacted in 1993.” In each case, the judge assessed fees against the petitioner nursing home. In the 2007 case of G.S., the court observed, "To the extent that the nursing home is seeking to be paid for the care it has rendered to the person, the petitioner must seek a different avenue of redress for that relief as a guardianship application is inappropriate."

Continue reading

January 29, 2015 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Third Circuit: Officers & Directors of Bankrupt Nursing Home Liable for "Deepening Insolvency" But Punitive Damages Not Proven re Directors

We reported in December 2013 about the long saga of the Lemington Home for the Aged, a troubled nursing home that sought bankruptcy court protection in 2010.  Lemington Home for Aged Now, in a 2015 decision by the Third Circuit Court of Appeals, following an appeal from the March 2013 jury verdict that awarded the Home's unsecured creditors a total of $5.75 million, key issues about that damage award are addressed.

Judge Vanaskie, who had taken the lead on an earlier appellate opinion regarding the officers and directors, provided some relief for the five former directors on the nonprofit organization's board, who faced joint and several liability for more than $3.5 million in punitive damages.  The opinion begins with a concise summary of the outcome:

"This lawsuit, which concerns the mismanagement of a Pittsburgh-area nursing home and its ensuing bankruptcy, comes before the Court for a third time on appeal. In the present appeal, the Defendants, two former Officers and fourteen former Directors of the nursing home, present several challenges to the jury's verdict, which found them liable for breach of fiduciary duties and deepening insolvency. The jury also imposed punitive damages against the two Officers and five of the Directors.

 

We will affirm the jury's liability findings and the punitive damages award imposed against the Administrator and the Chief Financial Officer of the nursing home. We will, however, vacate the jury's award of punitive damages against the Defendants who served on the nursing home's Board of Directors. We conclude that the punitive damages award against those Defendants was not supported by evidence sufficient to establish that they acted with 'malice, vindictiveness and a wholly wanton disregard of the rights of others .' Smith v. Renaut, 387 Pa. Super. 299, 564 A.2d 188, 193 (Pa. Super. Ct. 1989) (citations omitted)."

The full opinion, filed on January 26, 2015 for In re Lemington Home for the Aged, is well worth reading, especially for the additional analysis of how individual officers and directors of a corporation (even a nonprofit corporation), can face personal liability for contributing to  "deepening insolvency," a form of "fraudulent expansion of corporate debt."  At the same time, the opinion analyzes the active misconduct of the CEO and CFO of the company that supported the award of punitive damages, as opposed to the absence of proof of  "outrageous or malicious conduct" that precluded the directors' liability for same.

January 29, 2015 in Current Affairs, Ethical Issues, Federal Cases, Health Care/Long Term Care, Retirement | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 28, 2015

Should the Senior Housing Market Segment Known as "CCRC" Change Its Name?

LeadingAge, an senior housing and senior care organization that often takes a prominent advocacy role on behalf of nonprofit Continuing Care Retirement Communities, has a "NameStorm Survey" underway.  The survey explores whether another name (and presumably an acronym other than CCRC) would better "resonate with consumers?" Everyone is invited to weigh-in, including current residents at CCRCs.

Here's the link to the reasons for the brainstorming of names, and here is a link to the on-line survey, that  takes just a few minutes.  The survey window closes on February 15, 2015.

January 28, 2015 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 27, 2015

Congressional Leaders Seek Answers on Enforcement of Medicaid Asset Transfer Rules

Republican chairs of the House Committee on Energy and Commerce and the Senate Finance Committee recently wrote to the head of Center for Medicare and Medicaid Services (CMS), demanding explanation for why 22 states and D,C. are "failing" to implement federal laws about Medicaid eligibility and asset transfer rules for Long Term Services and Supports (LTSS) benefits.   They write:

"We are troubled to learn that many states have not implemented all of the eligibility and asset transfer requirements enacted by OBRA and DRA.  Information provided to us by the Department of Health and Human Services' Office of Inspector General (OIG) shows that, as of November 2013, only 28 states reported they implemented all of the relevant provisions from these two laws.  Thus, although it has been over 20 years since enactment of OBRA and nearly 10 years since DRA, the remaining 22 states and the District of Columbia have yet to comply with federal law.  California, which accounts for 12 percent of Medicaid LTSS spending, reported that it has not implemented the majority of the relevant provisions.  As a result, federal Medicaid dollars may be paying for care for individuals who are not eligible for coverage under federal law, which puts a strain on resources for those individuals who are eligible and in need."

The Chairmen ask for answers to a list of questions (by February 27), focusing on what action CMS is taking or will take to bring states "into compliance." For example, they ask "How is CMS ensuring that federal Medicaid dollars are not being used to support coverage for individuals ineligible for LTSS under federal law?"

Here is the legislators' full letter, addressed to Marilyn Tavenner at CMS, dated January 23, 2015.

For another perspective on potential disparities among the states in administering Medicaid eligibility rules for LTSS, see AARP's Public Policy Institute Report on "Access to Long-Term Services and Supports: A 50-State Survey of Medicaid Financial Eligibility Standards" released in September 2010. 

This letter presents an interesting juxtaposition with the Armstrong case now pending in the Supreme Court.  On the one hand, federal and state governments are arguing in court that there is no private standing to challenge "underfunding" of federally mandated Medicaid programs; on the other hand Congress seems to be demanding that CMS stop any potential for overfunding Medicaid beneficiaries.  

January 27, 2015 in Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Monday, January 26, 2015

NYT: Nursing Homes Seek Guardianships (And Fees) To Collect Unpaid Nursing Home Costs

In a major investigative report, The New York Times describes findings that nursing homes in counties throughout the state of New York are agressively seeking appointment of non-family members as guardians for residents of their facilities.  The trigger? Unpaid nursing home fees.  

Reporter Nina Bernstein uses the history of 90-year old Lillian Palermo to illustrate the practice, where a nursing home initiated a guardianship proceeding to displace her husband's authority as agent under a Power of Attorney, when disputes with her husband left unpaid bills, alleged to be "approaching $68,000."  

NYT  and researchers at Hunter College teamed to analyze the use of guardianships as a bill collection tool by nursing homes:

"Few people are aware that a nursing home can take such a step.  Guardianship cases are difficult to gain access to and poorly tracked by New York State courts; cases are often closed from public view for confidentiality.  But the Palermo case is no aberration,. Interviews with veterans of the system and a review of guardianship court data conducted by researchers at Hunter College at the request of The New York Times show the practice has become routine, underscoring the growing power nursing homes wield over residents and families amid changes in the financing of long-term care.

 

In a random, anonymized sample of 700 guardianship cases filed in Manhattan over a decade, Hunter College researchers found more than 12 percent were brought by nursing homes.  Some of these may have been prompted by family feuds, suspected embezzlement or just the absence of relatives to help secure Medicaid coverage.  But lawyers and others versed in the guardianship process agree that nursing homes primarily use such petitions as a means of bill collection -- a purpose never intended by the Legislature when it enacted the guardianships statute in 1993."

While, according to the NYT, at least one court has ruled such a "tactic by nursing homes is an abuse of the law," the increase of such suits highlights the payment dilemmas faced by facilities and families as Medicaid eligibility rules narrow and as the margin tightens for coverage of costs of care.

New York is not alone in seeing guardianship cases initiated by nursing homes.  In Pennsylvania, attorneys retained by families or individuals have also sometimes challenged the practice, focusing on the use of facility-preferred guardians and the amount of fees added to the care bills in dispute.

For more, read "To Collect Debts, Nursing Homes Are Seizing Control Over Patients."

January 26, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Medicaid, State Cases | Permalink | Comments (0) | TrackBack (0)

Justice in Aging: New Name plus Long-Standing Commitment

National Senior Citizens Law Center, an important advocate for low income seniors in the U.S. since its inception in 1972, has announced a new identity, "Justice in Aging." But, don't worry, this change represents a deepening of their long-standing commitment (including a cherished role in training and education of senior advocates, including free webinars). As explained in news releases:

"The new name and accompanying 'look' will more accurately reflect the nature of our work, build on our legacy of impact, and open the door to engage more supporters and partners across the country.  And it is a LOT easier to say and remember!

 

Our new name will be Justice in Aging.  Our new tagline will be Fighting Senior Poverty Through Law.... Our new website will be www.justiceinaging.orgWe will begin using the new name on March 2, 2015.... While our name is changing, our work will remain the same.  As income inequality increases across the nation and the population ages, senior poverty is growing to unprecedented levels.... We still serve serve as a resource for advocates on important programs like Medicare, Medicaid, LTSS, Social Security and SSI." 

We wish the hardworking staff of NSCLC -- or now JiA, perhaps? -- all the best as they roll out their new identity, and in their continuing commitment to advocating for seniors across the nation. 

January 26, 2015 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, Medicare, Social Security | Permalink | Comments (0) | TrackBack (0)

Sunday, January 25, 2015

Proposed Regs from the VA

The Federal Register on January 23, 2015 included a proposed rule from the VA on Net Worth, Asset Transfers, and Income Exclusions for Needs-Based Benefits.  Here is an excerpt from the executive summary

This proposed rulemaking would amend regulations governing VA's needs-based pension programs to promote consistency in benefit decisions, reduce opportunities for attorneys and financial advisors to take advantage of pension claimants, and preserve the integrity of the pension program. The revised regulations would promote consistent decisions by establishing a bright-line net worth limit and re-defining net worth as the sum of assets and annual income. The revised regulations would also promote consistent decisions by defining in regulations those unreimbursed medical expenses that VA will deduct from a claimant's annual income for purposes of determining a claimant's annual pension payment.

By establishing in regulations a look-back and penalty period for claimants who transfer assets before applying for pension to create the appearance of economic need where it does not exist, the revised rules would reduce opportunities for financial advisors to provide advice for the restructuring of assets that, in many cases, renders the claimant ineligible for other needs-based benefits. Establishing a look-backand penalty period for pre-application transfers of assets would also preserve the integrity of the pension program by ensuring that VA only pays the benefit to those with genuine need.

Comments are due by March 24, 2015.

January 25, 2015 in Health Care/Long Term Care, Veterans | Permalink | Comments (0) | TrackBack (0)