Thursday, July 16, 2015
Probably the best bang for your CLE buck in Pennsylvania comes from the two-day Elder Law Institute hosted each summer by the Pennsylvania Bar Institute. This year the 18th annual event is on July 23 & 24 in Harrisburg.
- "The Year in Review" with attorneys Marielle Hazen and Robert Clofine sharing duties to report on key legislative, regulatory and judicial developments from the last 12 months;
- How to "maximize" eligibility for home and community based services (Steve Feldman and Pam Walz);
- Cross disciplinary discussions of end-of-life care with medical professionals and hospice providers;
- LTC "provider" perspectives (Kimber Latsha and Jacqueline Shafer);
- Latest on proposals to change Veterans' Pension Benefits (Dennis Pappas);
- Implementation of the Pa Supreme Court's Elder Law Task Force Recommendations (Judges Lois Murphy, Paula Ott, Sheila Woods-Skipper & Christin Hamel);
- A closing session opportunity, "Let's Ask the Department of Human Services Counsel" (with Addie Abelson, Mike Newell & Lesley Oakes)
There is still time to registration (you can attend one or both days; lunches are included and there is a reception the first evening).
I think this is the first year I have missed this key opportunity for networking and updates; but I'm sending my research assistant!
July 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)
Friday, July 10, 2015
Louisiana Governor Bobby Jindal, one of (now many) candidates for the Republican nomination for President, has been making a fair amount of press of late, for his positions on so-called medical marijuana, Common Core education standards, and how his state will handle same-sex marriage. Lower on the radar screen, however, was his signing of Act 260, an interesting package of legal changes affecting obligations between various family members.
One of these changes was to adopt a new provision affecting the obligations of "ascendants and descendants" to provide "basic necessities of life" for family members "in need." In other words, filial support.
Louisiana already had a provision, Section 229, providing that "children are bound to maintain their father and mother and other ascendants who are in need." The new provision continues this statutory obligation, but makes enforcement "personal" only. The substitute provision was signed into law on June 29 and becomes effective on January 1, 2016. New Article 237 of Act 260 provides:
Descendants are bound to provide the basic necessities of life to their ascendants who are in need, upon proof of inability to obtain these necessities by other means or from other sources, and ascendants are likewise bound to provide for their needy descendants, this obligation being reciprocal.
This obligation is strictly personal and is limited to the basic necessities of food, clothing, shelter, and health care.
This obligation is owed by descendants and ascendants in the order of their degree of relationship to the obligee and is joint and divisible among obligors. Nevertheless, if the obligee is married, the obligation of support owed by his descendants and ascendants is secondary to the obligation owed by his spouse.
Official comments explaining the revisions emphasize that the necessities obligation kicks in only when the needy family member is unable to obtain necessities "by other means" or from "other sources," thus signaling any filial support obligation is secondary to the individual's eligibility for public assistance or other welfare benefits. Further "for the first time" Louisiana law "provides a ranking of those descendants and ascendants who owe this reciprocal, lifetime obligation."
The commentary explains that the revision makes the obligation "strictly personal," and there it precludes enforcement by "a third person." Thus, it would appear that unlike in Pennsylvania (or Germany?) nursing homes and the state may not use these statutes in order to sue family members to collect necessities for indigent elders.
According to the comments, the obligation is also not "heritable." This appears to reflect a Louisiana Court of Appeals decision from 2010, In re Succession of Elie,denying a mother's claims for funds from a deceased son's estate brought under former Section 229.
Friday, July 3, 2015
On July 1, 2015, Pennsylvania's Attorney General filed a complaint in the Commonwealth Court against Golden Gate National Senior Care LLC (GGNSC) which manages and operates Golden Living Centers nationally. The AG's suit focuses on 14 facilities in Pennsylvania. From the AG's press statement:
The legal action asserts Golden Living violated the Unfair Trade Practices and Consumer Protection Law by deceiving consumers through its marketing practices.
The company advertised it would keep its residents clean and comfortable while providing food and water at any time. But its facilities were understaffed, leaving residents thirsty, hungry, dirty, unkempt and sometimes unable to summon anyone to help meet their most basic needs, such as going to the bathroom, the legal action asserts.
According to the AG's office, evidence comes from residents' family members and former employees of Golden Living, including certified nursing assistants. The allegations focus on an alleged "widespread pattern of understaffing and omitted care."
Further, the AG makes the following specific allegations:
- Continent residents left in diapers because they were unable to obtain assistance going to the bathroom.
- Incontinent residents left in soiled diapers, in their own feces or urine, for extended periods of time.
- Residents at risk for bedsores from not being turned every two hours as required.
- Residents not receiving range of motion exercises.
- Residents not receiving showers or other hygiene services as required.
- Residents being woken at 5 a.m. or earlier to be washed and dressed for the day.
- Residents not being timely dressed in order to attend their meals.
- Residents not being escorted to the dining hall and sometimes missing meals entirely.
- Long waits for responses to call bells or no responses at all.
- Staff, under the direction of management or fear of management, falsifying records to indicate residents received services when in fact they did not.
- Improved staffing when state inspections occurred, leading to deceit about the true conditions at the facility.
- The investigation also included a review of staffing levels self-reported by Golden Living facilities and deficiencies cited in surveys conducted by the state Department of Health.
According to one news source, Golden Living responded to the suit with a statement expressing the company's confidence that the "claims made by the Attorney General are baseless and wholly without merit," and further alleging the suit is the "unfortunate result of Kathleen Kane's inappropriate and questionable relationship with a Washington D.C.-based plaintiff's firm that preys on legitimate businesses and is paid by contingency fees." (For those of you not privy to the local news on Pennsylvania politics generally and AG Kathleen Kane specifically, I think it is fair to say that the press frequently refers to her as the "embattled AG." She first took office in January 2013).
The Pennsylvania AG's suit comes on the heels of a broader report released in June by Community Legal Services of Philadelphia, asserting that from 2012 through 2014 the Pennsylvania Department of Health under former Governor Corbett's administration, failed significantly to conduct proper investigation of complaints about a large number of nursing homes (not limited to Golden Living) and failed to enforce existing regulations designed to protect residents.
For Golden Living, allegations are not limited to Pennsylvania. For example, in June 2015, claims about chronic understaffing of 12 Golden Living Center nursing homes in Arkansas were certified to be litigated as a class action.
Hat tip to Douglas Roeder, Esq., for bringing the latest Pennsylvania AG's suit to my attention. Last month I reported on the A.G.'s suit for unfair trade practices filed against a law firm that was alleged to be improperly using Pennsylvania's filial support law as a basis for collection demands against family members of the debtor.
July 3, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, June 29, 2015
California Court Says Law Permitting Nursing Homes to "Make Routine Decisions for Incapacitated Residents" Is Unconstitutional
On June 24, 2015, the Superior Court for the State of California, County of Alameda, Judge Evelio Grillo presiding, issued a mandamus in a court suit filed in 2013 by California Advocates for Nursing Home Reform (CANHR). Lots of interesting and important issues here, including:
- the finding that CANHR, a nonprofit agency "dedicated to improving the quality of care for California's nursing home residents," has standing to bring a citizen action to challenge the reliance by nursing homes on California law to permit them to make decisions "for" incapacitated residents who do not have court appointed agents, family or other surrogate decision makers;
- the conclusion that the California law in question, Calif. Health & Safety Code Section 1418.8, is unconstitutional, both facially and as applied;
- the recognition that the mandate is necessary, even though it will require major changes in how care facilities operate in the daily care of patients.
The 44 page opinion concludes:
"The court is aware that this statute was the Legislature's attempt to deal with a very difficult and significant problem of how to provide timely and effective medical treatment to patients in skilled nursing facilities without delays that were often happening when a petition had to be filed in probate court. The court acknowledges that this order will likely create problems in how many skilled nursing facilities currently operate.... The court has considered this burden and weighed it against the due process concerns, and finds that the due process rights of these patients is more compelling. The stakes are simply too high to hold otherwise. Any error in these situations has the possibility of depriving a patient of his or her right to make medical decisions about his or her own life that may result in significant consequences, including death. A patient may not only lose the ability to make his or her health decisions, but also to manage his or her own finances, determine his or her visitors, and the ability to leave the facility."
Congratulations to the hard-working advocates at CANHR, and particularly to Golden Gate Law Professor Mort P. Cohen, who brought the action on behalf of CNHR and several nursing home residents. Here is a link to the full opinion in CANHR v. Chapman, Case No. RG13700100. Here is a press release from CANHR.
June 29, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink
Sunday, June 28, 2015
In Binder v, Binder, decided June 26, 2015, the Nebraska Supreme Court affirmed an award against the husband for alimony in the amount of $3,200 per month. This was the amount necessary to cover the wife's balance due each month for her nursing home care. The divorcing couple, each in their mid 90s, had been married for 32 years, a second marriage for both. Married in their 60s, they had no children together. The husband had at least one child from a prior marriage; his son leased the husband's farmland for more than 25 years to continue operations.
The husband argued that the alimony award, exceeding his own $2,800/mo income from Social Security and rental of his farming property, was an abuse of discretion as it lowered his income below "poverty thresholds" set by state guidelines for child support awards. The Court ruled, however, that in the absence of minor children, the guidelines were inapplicable. Nonetheless, the Court also addressed the "reasonableness" of the award and concluded:
In reviewing an alimony award, an appellate court does not decide whether it would have awarded the same amount of alimony as the trial court. Instead it decides whether the trial court's award is untenable such as to deprive a party of a substantial right or just result. The main purpose of alimony is to assist a former spouse for a period necessary for that individual to secure his or her own means of support. Reasonableness is the ultimate criterion.
Applying these factors, we cannot say that the amount of alimony is an abuse of discretion. Glenn sought to dissolve his nearly 32–year marriage to Laura after she began incurring expenses for essential nursing home care that are well beyond her means. Laura did not work outside the home during the marriage, she is not employed now, and there is no evidence that she has untapped earning capacity. Similarly, Glenn is retired and has no wage income. But while Laura has exhausted nearly all her assets, Glenn has the power to dispose of more than 200 acres of farmland. The land is not irrelevant to alimony even though it is Glenn's premarital property. A court may consider all of the property owned by the parties—marital and separate–in decreeing alimony.
As to disputes over matters such as Laura's contributions to the marriage, we note that the district court was in the best position to judge the witness' credibility. Although our review is de novo, if credible evidence is in conflict on a material issue of fact, an appellate court considers and may give weight to the circumstance that the trial judge heard and observed the witnesses and accepted one version of the facts than another. This rule is particularly apt here because both Laura and Glenn had some trouble testifying and the record does not show to what extent their difficulties were cognitive, auditory, or other.
In reading the decision, I'm struck by questions of what -- or even who -- was driving the divorce, and to what extent the parties' decisions were affected by Medicaid eligibility issues. For more history, as well as comments by the husband's attorney, see "Retired Farmer Must Pay More in Alimony Than Monthly Income," in the Omaha World-Herald.
Thursday, June 18, 2015
Earlier this week I recommended Atul Gawande's book, Being Mortal: Medicine and What Matters in the End, and I offered an excerpt from his discussion of how doctors are impacted by practical limits on their goals as solvers of problems. But the book is about more than just medicine. Another compelling chapter traces attempts to avoid "nursing homes" and the once cutting edge trend of "assisted living" as an alternative:
The idea spread astoundingly quickly. Around 1990, based on [Keren Brown] Wilson's successes, Oregon launched an initiative to encourage the building of more homes like hers. Wilson worked with her husband to replicate their model and to help others do the same. They found a ready market. People proved willing to pay considerable sums to avoid ending up in a nursing home, and several states agreed to cover the costs for poor elders.
Not long after that, Wilson went to Wall Street for capital, to build more places. Her company, Assisted Living Concepts, went public. Others sparing up with names like Sunrise, Atria, Sterling, and Karrington, and assisted living became the fastest growing form of senior housing in the country. By 2000, Wilson had expanded her company from fewer than a hundred employees to more than three thousand. It operated 184 residents in eighteen states. By 2010, the number of people in assisted living was approaching the number in nursing homes.
But a distressing thing happened along the way. The concept of assisted living became so popular that developers began slapping the name on just about anything. The idea mutated from a radical alternative to nursing homes into a menagerie of watered-down versions with fewer services. Wilson testified before Congress and spoke across the country about her increasing alarm at the way the ideas was evolving....
For more, see Chapter 4 of Being Mortal, titled "Assistance." The other intriguingly-named chapters are "The Independent Self," Things Fall Apart," "Dependence," "A Better Life," "A Better Life," "Letting Go," "Hard Conversations," and "Courage."
June 18, 2015 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Property Management, Retirement, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, June 16, 2015
Last fall, I blogged about In re Skinner, a case in which one son was trying to prevent a brother from obtaining a discharge in bankruptcy court of a "filial support" judgment to a long-term care facility. Both brothers had been sued, but one brother, Thomas, had defaulted on the suit, resulting in a default judgment as to his liability. The bankruptcy court concluded that Brother William lacked standing" to prevent Brother Thomas' discharge of debt to an assisted living facility for care of their mother.
In May, 2015 the United States District Court for the Eastern District of Pennsylvania affirmed the bankruptcy court's dismissal of the adversary proceeding, concluding that "William Skinner has not adequately alleged that he is a bankruptcy creditor of Thomas Skinner. He therefore lacks standing to bring an action challenging the dischargeability of Thomas Skinner's debts."
The additional allegations described in the District Court opinion -- which are reminiscent of the allegations of misuse of Powers of Attorney in Presbyterian Medical Center v. Budd (Pa. Super. 2013) -- demonstrate the complicated nature of filial support suits for family members. This is especially true in Pennsylvania where courts seem to be treating claims of statutory liability as "joint and several" in nature, and not proportional based on fault. For the latest see In re Skinner, 2015 WL 3400943, (E.D. Pa. May 27, 2015).
June 16, 2015 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, June 1, 2015
The Florida Joint Public Policy Task Force for the Aged and Disabled urges individuals, families and attorneys to bring emerging problems with Medicaid Managed Care in Florida to the attention of administrators at the Agency for Health Care Administration (AHCA). Only by staying on top of any problems can the new systems be evaluated and corrected.
In the Florida Bar News, the Task Force writes:
One issue the Task Force — a combined effort of the Academy of Florida Elder Law Attorneys and The Florida Bar’s Elder Law Section — is concerned about is that seniors on Medicaid may be signing forms allowing their Medicaid managed care plans (MCP) to take control over who receives information from the state, including notices for annual deadlines for ongoing eligibility, without understanding what they are signing. This led to an MCP missing the deadline for at least one client.
“A wife was understandably very upset when she found out her husband’s Medicaid had been cancelled,” says Emma Hemness, the president of the Academy of Florida Elder Law Attorneys, Task Force member and elder law attorney in Brandon. “The MCPs are supposed to make sure this doesn’t happen. The wife says she never received a notice and she doesn’t remember giving any authority to the MCP.
Wednesday, May 27, 2015
In my preparation for an upcoming talk show on WPSU on "Caring for Mom & Dad," I had the incentive to get to my stack of "must read" books to focus on The Aging of Dignity: Preparing for the Elder Boom in a Changing America, by Ai-Jen Poo (New Press 2015). What I very much like about this book is the broad lens it brings to aging demographics, focusing not on "burdens" but on "opportunities" to be a more productive, healthy society by dealing realistically with the need for both professional caregivers and family caregivers. Ai-Jen Poo writes:
Aging at home necessitates home care workers. Yet the 3 million people currently in the home care workforce cannot meet even the current need, let alone the demand for care that will accompany the elder boom. We will need at least 1.8 million additional home care workers in the next decade. As a result, care giving, specifically home care, is the fastest growing of all occupations in the nation....
With some course corrections in our culture and in our institutions, we can have the care infrastructure that will enable us to live our full potential. . . . The moral of this story is that a caring America is entirely within reach.
Not surprisingly, given her inspiring call for action, Ai-Jen Poo was a MacArthur "genius" grant recipient in 2014. She is one of the commentators on Caring for Mom & Dad, and in Pennsylvania, she will be part of our panel for WPSU's Conversations Live following the airing of the documentary on Thursday, May 28. The documentary is at 8 p.m., and the audience can "call-in, e-mail or text-in"beginning at 9 p.m. More details and links available here about the documentary and schedules here.
May 27, 2015 in Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Grant Deadlines/Awards, Health Care/Long Term Care, Medicaid, Medicare, Statistics, Television | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 26, 2015
Here is an interesting item from a recent Senior Care Investor News, published by Irving Levin & Associates:
"The rise in acuity in post-acute care is certainly having its impact in the skilled nursing M&A market. Historically, the range in price per bed for skilled nursing facilities has been approximately $100,00 to $125,000 per bed, according to the 2015 Senior Care Acquisition Report. Every year, there are always sales between $10,000 and $20,000 per bed, with the occasional sale below $10,000 per bed. And there have always been sales above $100,000. But in 2014, while the low price was a typical $9,000 per bed, the high was an astounding $268,500 per bed, resulting in a spread of $259,500. There was also a record number of deals valued over $100,000 per bed, with 19 transactions, which just goes to show the rise in acuity is pushing up prices across the board."
What would be driving the market for "skilled" beds to a higher figure, especially given the continued dependence on Medicaid as the primary payer for skilled care, combined with the fact that Medicaid pays below (and arguably significantly below) actual costs of skilled care? This market data seems illogical to me, and I'm sure I'm missing something.
Monday, May 25, 2015
A new report from the AARP Public Policy Institute/Urban Institute highlights the positive impact of Medicaid expansion for the 50-64 age group. Monitoring the Impact of Health Reform on Americans Ages 50–64 notes that "[t]he Uninsured Rate for 50- to 64-Year-Olds Dropped 31 Percent since December 2013."
The abstract for the report offers that
New data from the December 2014 Health Reform Monitoring Survey show that the share of Americans ages 50 to 64 without health insurance fell by nearly a third, from 11.6 percent to 8.0 percent, between December 2013 and December 2014. States that chose to expand eligibility for their Medicaid programs saw a larger drop in uninsured rates among 50- to 64-year-olds than states that did not. Overall, the number of 50- to 64-year olds with health coverage increased by approximately 2.2 million between December 2013 and December 2014.
The report determines that "Medicaid expansion was a clear driver of the reduction of the uninsured rate among 50- to 64-year olds."
The full report is available here.
University of South Dakota Assistant Professor of Law Thomas E. Simmons has an intriguing article in the summer 2015 issue of Hastings Women's Law Journal. From his article, "Medicaid as Coverture," here are some excerpts (minus detailed footnotes) to whet your appetite:
Not long ago, married women possessed limited rights to own separate property or contract independently of their husbands. Beginning in the nineteenth century, most of the most serious legal impediments to women enjoying ownership rights in property and freedom of contract were removed....
Three twenty-first century developments, however, diminish some of this progress. First, later-in-life (typically second) marriages have become more common.... These types of couples were not the spouses that reformers had in mind in designing inheritance rights or other property rights arising out of the marital relationship....
Second, perhaps as a product of advocacy for women's property rights, and perhaps out of a larger social remodeling, women's holdings of wealth have made significant advances.... [But] women of some wealth (in later-in-life marriages, especially) may in fact find themselves penalized by the very gender-neutral reforms that were designed to help them; especially, as will be unpacked and amplified below, when those reforms interface with Medicaid rules.
Third, beginning in the late twentieth century, the possibility of ongoing custodial care costs became the single greatest threat to financial security for older Americans.
As practicing elder law attorneys experience on a daily basis, Medicaid eligibility rules, despite the so-called "Spousal Impoverishment" protections, can impact especially harshly on married women as the community spouses. They are often younger and thus will have their own financial needs, frequently have been caregivers before being widowed, but their personal assets may still be included in the Medicaid estate for purposes of determining their husbands' eligibility. This article takes a critical, interesting approach to that problem.
May 25, 2015 in Discrimination, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Social Security | Permalink | Comments (1) | TrackBack (0)
Thursday, May 14, 2015
PBS is premiering a powerful documentary special, Caring for Mom & Dad, during the month of May, with Meryl Streep as the narrator. A sample? Many of us might find resonance with one adult's "bad daughter" (or "bad son") feelings of guilt, candidly admitted here.
Even more important than the video itself will be the conversations that follow viewing. Check your local public t.v. schedule to see when the program will air in your area. (You can check here, to see if the documentary is scheduled yet in your viewing area -- go to the drop down menu for "Schedule.") Plus, in some markets, the documentary will be combined with a live call-in opportunity for individuals and families to explore health care, social care, financial topics and legal issues with a panel of experts.
My own university, Penn State, is hosting the special on Thursday, May 28, 2015 at 8:00 p.m. (Eastern time), followed by Conversations Live at 9:00 p.m. That is two weeks from today on WPSU-TV, a station that reaches a viewing area of 29 counties in central Pennsylvania. In addition, the Conversations Live program will be broadcast on WPSU-FM radio and can be viewed "on-line" at WPSU.org.
As a result of an invitation to be part of the WPSU studio panel, I've had the opportunity to watch the documentary -- several times (it's that interesting!) -- in preparation to help in responding to audience comments, emails and call-in questions. Additional Conversations Live guests include:
Ai-jen Poo, co-director of Caring Across Generations and director of National Domestic Workers Alliance, will be joining via satellite from D.C. Ai-jen Poo is featured in the documentary, and she also has a particular interest in enactment of a Domestic Workers' Bill of Rights, to deal realistically and fairly with the work force that will be necessary to meet the boomer generation's care needs.
Dr. Gwen McGhan, Hartford Center for Geriatric Nursing Excellence at Penn State, with a research background on informal family caregiving.
Jane McDowell, Hartford Center for Geriatric Nursing Excellence at Penn State, and a geriatric nurse practitioner.
The documentary was produced by WGBH-Boston, with funding assistance from AARP and Pfizer.
Please join us and share your stories and observations. The documentary starts with personal stories, but the public policy messages that emerge are ones that need to be heard at state and federal levels -- and heard clearly -- for there to be hope for realistic, necessary and timely solutions.
May 14, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Film, Health Care/Long Term Care, Medicaid, Medicare, Social Security, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 5, 2015
Here we go again. Another hard look at why a significant percentage of the public has not signed some form of advanced directive. In April 2015, GAO issued Advance Directives: Information on Federal Oversight, Provider Implementation, and Prevalence, its response to requests made by Senators Bill Nelson (D-Fla), Johnny Isakson (R-Ga), and Mark Warner (D-Va) who were inquiring into the role of the Centers for Medicare and Medicaid Services (CMS) in overseeing providers, including hospitals and nursing homes, that are mandated by law to maintain written procedures and provide information about advance directives.
Perhaps it is just me, but whenever legislators raise this topic, it seems to me the not-so-subtle underlying message is "why aren't people agreeing in writing to forego aggressive health care as they near the end of life so that we can save more money on health care?"
In any event, the report:
- documents current practices for offering living wills, health care powers of attorney, and various alternatives such as DNR and POLST forms (including the potential for some confusion among staff members of health care providers about "who" should be handling the education and signing process),
- refers to a major Institute on Medicine study (Dying in America, 2015) on a similar topic, and
- concludes that there is no "single" point of entry for execution of advanced directives.
As the GAO team observes, "[t]herefore, a comprehensive approach to end-of-life care, rather than any one document, such as an advance directive, helps to ensure that medical treatment given at the end of life is consistent with an individual’s preferences."
Hat tip to Karen Miller, Esq., in Florida for the link to the latest study and report.
May 5, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (1) | TrackBack (0)
Tuesday, April 28, 2015
According to the Atlanta Journal-Constitution, the "long-time head of [Georgia's] powerful nursing home lobby has resigned after months of internal differences." The resignation appears to be about more than just internal politics, perhaps implicating state ethics. AJC explains:
"The resignation of Jon Howell, first reported by Georgia Health News, came only a few months after he told lawmakers that the industry didn’t need all of the money Gov. Nathan Deal recommended as part of a rate hike for select nursing homes. Several of those nursing homes are owned by one of Deal’s top contributors. But one state official said the 'civil war' within the organization began before this year’s General Assembly session.
The nursing home association is a major player at the statehouse, and owners have a big stake in what happens at the Capitol. The state pays more than $1 billion a year to nursing homes to care for Georgians. Owners have long been politically active, donating big money to state leaders and lawmakers who fund reimbursements. Earlier this year, Deal recommended that select nursing homes get a $27 million a year rate increase, a bump stalled by the Department of Community Health board last year...."
Separate articles in the AJC indicate that federal CMS authorities are now seeking millions of dollars of reimbursement for Medicaid payments made to 34 specific nursing facilities, although whether this claim correlates with the governor's recommended rate increase is not clear from the articles. State officials are reported as disagreeing with the federal CMS ruling that triggers the reimbursement claim.
Recent rate increases recommended by the Georgia governor were rejected by Georgia's General Assembly. Additional coverage on the Georgia nursing home industry's organization is provided by McKnight's Long-Term Care News.
I suspect the Georgia stories are part of a bigger picture. Compare, for example, Al Jazeera's America Tonight report from April 2014 on The Whopping Political Power of the Florida Nursing Home Lobby, describing the nursing homes advocating for placement of children into facility-based care.
Thursday, April 23, 2015
Justice in Aging (formerly National Senior Citizens Law Center) is offering a free webinar on Wednesday. April 29, from 2 to 3 p.m. (eastern time) on "How New CMS Person-Centered Care Planning Rules Apply to Medicaid Delivered Long-Term Services and Supports (LTSS)."
They report their webinar will focus on the rules as they apply to long-term services and supports delivered through Medicaid home and community-based waivers, and will:
- Provide background context for the new person-centered planning and service plan rule
- Analyze the requirements of the new rule
- Give examples of how selected states (Minnesota, New Jersey, Tennessee, and Wisconsin) are implementing provisions of the rule
- Identify gaps where more detailed state rules or better managed care plan contractual terms are needed to ensure that compliance with the intent of the rule
Who should participate? The program is suggested for health care professionals and their staffs, attorneys for consumers of LTSS services, and public employees -- and consumers, too.
Here is the link for the registration.
Monday, April 20, 2015
Whenever I look at national programs on "hot topics" in healthcare law, I'm seriously impressed by the number of offerings on regulatory compliance issues connected to Medicare and Medicaid payments. There are abundant reasons for this emphasis. Each year the Department of Justice touts its statistics on "recoveries" for False Claim Act cases. For the fiscal year ending September 30, 2014, the DOJ enthusiastically reported its "first annual recovery to exceed $5 billion" in a single year. No wonder health care law is a hot field. And remember, much of the money is connected to senior care in all of its guises.
A recent $1.3 million settlement on a Medicare-related False Claims Act case might seem like small potatoes at first glance. But, I was struck by the fact that it was a DOJ settlement with a (non-profit) Continuing Care Retirement Community. I don't usually think of CCRCs as being a major target of False Claim Act allegations. Details are a bit sparse, but the size of the payment seemed pretty hefty when you consider that Asbury Health Center near Pittsburgh, PA actually "self-disclosed" its violation of Medicare regulations. The DOJ press release on April 15 explains:
"For post-hospital skilled nursing care, Medicare regulations require that a facility obtain a physician certification at the time of admission or as soon thereafter as reasonable and practical. The facility must also obtain a physician recertification within 14 days of admission and every 30 days thereafter. Based on information provided by Asbury, the United States alleged that it had civil claims against Asbury resulting from Medicare payments for post-hospital skilled nursing services that were not supported by physician certifications and recertifications."
Thursday, April 16, 2015
From the New York Times on April 14, an article from the business section, As Nursing Homes Chase Lucrative Patients, Quality of Care is Said to Lag.
Promises of “decadent” hot baths on demand, putting greens and gurgling waterfalls to calm the mind: These luxurious touches rarely conjure images of a stay in a nursing home.
But in a cutthroat race for Medicare dollars, nursing homes are turning to amenities like those to lure patients who are leaving a hospital and need short-term rehabilitation after an injury or illness, rather than long-term care at the end of life.
Even as nursing homes are busily investing in luxury living quarters, however, the quality of care is strikingly uneven. And it is clear that many of the homes are not up to the challenge of providing the intensive medical care that rehabilitation requires. Many are often short on nurses and aides and do not have doctors on staff.
Some colorful quotes here ("patients are leaving the hospital half-cooked"), but a lot of this well-written article nonetheless seems like old news to me (okay, perhaps that's because of my chosen research focus), with reporting on trends influenced by operating margins on the "nonprofit" side of care, and "return on investment" for shareholders on the for-profit side. Perhaps "intensity" of the pressures is the theme here?
Tip of the hat to George Washington University Law student Sarah Elizabeth Gelfand ('16) and GW Professor Naomi Cahn for making sure we saw this article!
Saturday, April 11, 2015
One of the first assignments I give to law students in my Elder Law course is to visit a "nursing home" and to see if they can get a copy of the admission agreement or contract. (Most of the facilities in my area cooperate with these student visitors.) The lesson here, however, is revealed when the students bring the documents back to the classroom for discussion. We discover that the majority of the contracts are not for admission to "skilled nursing facilities."
More frequently the facilities in question are licensed as "continuing care retirement communities" or CCRCs, which are big in Pennsylvania, or personal care homes (PCs or PCHs), or assisted living (AL) communities, each of which have different state regulations applying to their operations. These are not "nursing homes," or at least, they are not "skilled nursing facilities." Further, in Pennsylvania, increasingly there may be no label at all -- at least not a label that the public is familiar with -- and that is often by design as the facility or community may be attempting to avoid a "higher" level of requirements.
The usual explanation is that the choice in label is not driven by concerns over "quality" of care, but by costs of having to meet some non "care" related regulation, such as AL state requirements for room size or physical accommodations. The facility makes the case that it can meet the real needs of its clientele without being tied to "higher care" and therefore more "costly" models for senior housing. Fair enough. Caveat emptor. If you are the customer, make sure you do your homework, ask questions, comparative shop, and avoid assumptions based on pretty pictures in marketing brochures. And try to do all of this before an emergency that accelerates the need for a move.
But, there can be significant differences triggered by a label (or lack thereof) that are not readily apparent to the public. A recent Policy Issue Brief published by Justice In Aging (formerly the National Senior Law Center) uses examples from California to shine a spotlight on subtle issues in labeling, as well as on the importance of regulations that are responsive and up-to-date. Merely changing an "identity" or label should not be the basis for failing to comply with minimum standards relevant to the clients' needs.
In How California's Assisted Living System Falls Short in Addressing Residents' Health Care Needs, Justice in Aging (JIA, to make our circle of acronyms almost complete), provides a sample job notice for a California facility and asks "can you spot the legal violations in this Assisted Living job announcement?" The notice, appears to be hiring for a "certified med aide," despite the fact that there is no such thing in California, and more importantly, if the facility calling itself "Assisted Living" is actually a RCFE (residential care facility for the elderly), the California regulations do not permit staff to administer medications. Outside of Medicare/Medicaid standards for skilled nursing facilities -- the "nursing homes" of the past -- there are no national standards for labeling of "assisted living" or the many alternatives.
JIA's issue brief dated April 7, 2015 is part of a series that explores how California's system functions and points to ways it could be modified to help assure residents their expectations and needs will be satisfied.
The lessons in the JIA brief -- with a few tweaks to respond to any given state's set of acronyms -- seem equally relevant in all states.
Friday, April 10, 2015
ElderLawGuy Jeff Marshall alerted us to this week's ruling by the Third Circuit Court of Appeals, affirming the conviction of Eugene Goldman, M.D. for several counts of taking "kickbacks" for referral of Medicare and Medicaid patients for hospice services. Dr. Goldman's sentence of 51 months, followed by three years of supervised release during which he is barred from practicing medicine, was affirmed. The facts, as set forth in the opinion, are interesting:
"Goldman had a geriatric medicine practice in Northeast Philadelphia. In December 2000, he secured the position of Medical Director of Home Care Hospice ('HCH'). Alex Pugman served as Director of HCH, and his wife, Svetlana Ganetsky, was the Development Executive, responsible for marketing HCH to doctors and other healthcare professionals. According to his contract, Goldman was responsible for quality assurance, consultations, and the occasional meeting. In reality, his job was to refer patients to HCH.
Goldman was paid for the number of patients he referred to HCH and the length of their stay. Early in his relationship with HCH, Goldman was paid $200 per referral. By 2011, he received $400 per referral, with an additional $150 for each patient who stayed longer than a month. Ganetsky paid Goldman each month by check. Between 2002 and 2012, Goldman referred more than 400 Medicare patients to HCH and received approximately $310,000 in return.
In 2006 the FBI and Department of Health & Human Services began investigating HCH for Medicare fraud. The FBI followed up in 2008 by obtaining a search warrant and seizing over 500 boxes of documents and information from HCH’s servers. Shortly after the raid, Ganetsky and Pugman approached the FBI and agreed to cooperate in the investigation. Ganetsky then recorded several meetings at which she paid Goldman for his referrals. Ganetsky made these payments with funds drawn from an account opened by the FBI for the investigation."