Friday, October 21, 2016

LeadingAge's Annual Meeting Begins October 30 in Indianapolis

LeadingAge, the trade association that represents nonprofit providers of senior services, begins its annual meeting at the end of October.  This year's theme is "Be the Difference," a call for changing the conversation about aging.  I won't be able to attend this year and I'm sorry that is true, as I am always impressed with the line-up of topics and the window the conference provides for academics into industry perspectives on common concerns.  For example, this year's line up of workshops and topics includes:

October 21, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Science, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)

Monday, October 10, 2016

Will New Federal Ban on Pre-Dispute "Binding" Arbitration Clauses in LTC Agreements Survive Likely Challenges?

My colleague Becky Morgan provided prompt links and important initial commentary for CMS's recently issued final regulations that are intended to "improve the quality of life, care, and services" in Long-Term Care (LTC) facilities.  As we start to digest the 700+ pages of changes and commentary, it seems clear the battle over a key section that bans pre-dispute binding arbitration agreements is already shaping up.  This rule, at 40 CFR Section 483.70(n), has an implementation date of November 28, 2016.

The regulatory ban on pre-dispute binding arbitration in covered facilities raises the question of "conflict" with the Federal Arbitration Act (FAA), 9 U.S.C. Section 1 et seq.   The 2012 per curium ruling by the Supreme Court in Marmet Health Care Center, Inc. v. Brown, shapes the issue, if not the result. 

CMS distinguishes Marmet and presents the rule change as based on authority granted under the Social Security Act to the Secretary of Health and Human Service to issue "such rules as may be necessary to the efficient administration of the functions of the Department," which necessarily includes supervision of all providers, including LTC providers, who "participate in the Medicare and Medicaid programs."  CMS points to the long history of regulatory authority over LTC including long-celebrated "patient's rights" legislation adopted in the late 1980s.  CMS further explains (at page 399 of the 700 page commentary to the new rules):

Based on the comments received in response to this rulemaking, we are convinced that requiring residents to sign pre-dispute arbitration agreements is fundamentally unfair because, among other things, it is almost impossible for residents or their decision-makers to give fully informed and voluntary consent to arbitration before a dispute has arisen. We believe that LTC residents should have a right to access the court system if a dispute with a facility arises, and that any agreement to arbitrate a claim should be knowing and voluntary. . . . 


We recognize that an argument could be made that Medicare and Medicaid beneficiaries can assert in Court the FAA's saving clause if they believe that a pre-dispute arbitration agreement should not be enforced. However, the comments we have received have confirmed our conclusion that predispute arbitration clauses are, by their very nature, unconscionable. As one commenter noted, it is virtually impossible for a resident or their surrogate decision-maker to give fully informed or voluntary consent to such arbitration provisions. That same commenter 402 also noted that refusing to agree to the arbitration clause, in most cases, means that care will be denied.


Furthermore, Medicare and Medicaid beneficiaries are aged or disabled and ill. Many beneficiaries lack the resources to litigate a malpractice claim, much less an initial claim seeking to invalidate an arbitration clause. Rather than requiring Medicare and Medicaid beneficiaries to incur the additional fees, expense, and delay that would be the direct cost of opposing a motion to enforce arbitration, we have concluded that this is precisely the type of situation envisioned by the Congressional grant of authority contained in sections 1819(d)(4)(B) and 1919(d)(4)(B) of the Act authorizing the Secretary to establish "such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.”

By coincidence, just hours before the final LTC rules issued by CMS, the Pennsylvania Supreme Court enforced pre-dispute arbitration agreements for nursing home residents in Taylor v. Extendicare Health Facilities (decided September 28, 2016).  

The LTC industry seems ready to fight, as reported by industry insiders at McKnight's News on September 29, 2016: 

Both the American Health Care Association and LeadingAge expressed disappointment in the arbitration ban in statements provided to McKnight's.


“That provision clearly exceeds CMS's statutory authority and is wholly unnecessary to protect residents' health and safety,” said Mark Parkinson, president and CEO of AHCA.


LeadingAge has supported arbitration agreements that are “properly structured and allow parties to have a speedy and cost-effective alternative to traditional litigation,” but believes CMS has overstepped its boundaries with the ban, the group said.


“Arbitration agreements should be enforced if they were executed separately from the admission agreement, were not a condition of admissions, and allowed the resident to rescind the agreement within a reasonable time frame,” LeadingAge added in its statement.

Stay tuned -- but don't hold your breath as the next round is likely to take some time. My special thanks to Megan Armstrong, Class of 2018 at Dickinson Law, for sharing key links with me for our research on this important development. 


October 10, 2016 in Consumer Information, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Friday, September 30, 2016

Filial Friday: PA Trial Court Rules that New Jersey's Law Controls Outcome of "Reverse" Filial Support Claim

I've been following for some time an interesting "reverse filial support law" case in Delaware County, Pennsylvania.  A key issue in Melmark v. Shutt is whether New Jersey parents of a New Jersey, disabled, indigent adult son are liable for his costs of his care at a private, nonprofit residential facility specializing in autism services, Melmark Inc., in Pennsylvania. Since most of the modern filial support claims I see involve facilities (usually "nursing homes") suing children over the costs of their elderly parents' care, I describe cases where the facility is suing parents of an adult child as a "reverse filial support" law claim.

In a September 2016 opinion that followed a June nonjury trial, the Pennsylvania trial court used a "choice of law" analysis to determine which state's substantive "filial support"  law controlled the parents' liability. The court ultimately ruled that New Jersey's statutes applied.  N.J. filial support obligations are more limited than those affecting families under Pennsylvania law.  Under N.J. Stat. Ann. Section 44:1-140(c), the state exempts parents over the age of 55 from support obligations for their adult children (and vice versa). By contrast, Pennsylvania does not place age limits on filial support, either for adult children or elderly parents.  See Pa.C.S.A. Section 4603. In the Melmark case, the father was 70 and the mother was 68 years old during the year in question.  The disabled son was 29.

The court decided that New Jersey had the "most significant contacts or relationships" to the dispute. That's classic conflict-of-laws analytical language.  At issue was more than $205,000, for costs of residential services between April 1 2012 and May 14, 2013.

Continue reading

September 30, 2016 in Ethical Issues, Health Care/Long Term Care, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, September 28, 2016

Important: CMS Issues FInal Rules on Requirements for LTC Facilities

The Federal Nursing Home Reform Act went into effect back in 1987. Those accompanying regs have been in place a long time. Now CMS has issued final rules that revise the LTC regs.  The official publication date is Oct. 4, 2016.  The regs are being implemented in phases, with phase one going into effect on November 28, 2016.  Here is the Federal Register summary:

This final rule will revise the requirements that Long-Term Care facilities must meet to participate in the Medicare and Medicaid programs. These changes are necessary to reflect the substantial advances that have been made over the past several years in the theory and practice of service delivery and safety. These revisions are also an integral part of our efforts to achieve broad-based improvements both in the quality of health care furnished through federal programs, and in patient safety.

The regs are over 700 pages and are available here. Here are the effective dates: "Phase 1 must be implemented by November 28, 2016... Phase 2 must be implemented by November 28, 2017 ... Phase 3 must be implemented by November 28, 2019 ...  A detailed discussion regarding the different phases of the implementation timeline can be found in Section B. II 'Implementation Date.'"

42 C.F.R. 483.10 is updated but CMS is "retaining all existing residents’ rights and updating the language and organization of the resident rights provisions to improve logical order and readability, clarify aspects of the regulation where necessary, and updating provisions to include advances such as electronic communications."

There's a new reg, 42. C.F.R. 483.21, "Comprehensive Person-Centered Care Planning" wherein CMS, among other things, is "requiring facilities to develop and implement a baseline care plan for each resident, within 48 hours of their admission,  the instructions needed to provide effective and person-centered care that meets professional standards of quality care."

One of the most watched sections involved the use of arbitration clauses. 42 C.F.R. 483.70 now includes, among other things, the following: "Binding Arbitration Agreements: We are requiring that facilities must not enter into an agreement for binding arbitration with a resident or their representative until after a dispute arises between the parties. Thus, we are prohibiting the use of pre-dispute binding arbitration agreements."

This is just a brief overview of a few provisions. We'll blog about more of them later, but for now, be sure to read the new regs. They're important!

P.S. this post has been updated to correct the publication and effective dates (I was too excited)

September 28, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Tuesday, September 27, 2016

Kindred Health Care Inc. Hit With Sanctions for Failure to Comply with Federal Settlement Terms on Hospice Care

Kindred Healthcare Inc., the nation's largest post-acute care provider (after acquiring Gentiva Healthcare in 2015) recently paid more than $3 million to the federal government as sanctions for inaccurate billing practices under Medicare for hospice services.  That may not sound like a lot of money in this day and age of Medicare and Medicaid fraud cases, right?  After all, North American Health Care Inc. reportedly settled a false claims case with the Department of Justice earlier this month in a rehabilitation services investigation by agreeing to pay $28 million

But, the Kindred Health Care sanction is actually a penalty for failing to comply with the terms of a previous multimillion dollar settlement by the feds with Gentiva.  As part of that settlement, the company and its successors agreed to comply with a Corporate Integrity Agreement (CIA).  From the Office of Inspector General, Department of Health and Human Services press release:

It is the largest penalty for violations of a CIA to date, the Office of Inspector General (OIG) said.


The record penalty resulted from Kindred's failure to correct improper billing practices in the fourth year of the five-year agreement. OIG made several unannounced site visits to Kindred facilities and found ongoing violations. "This penalty should send a signal to providers that failure to implement these requirements will have serious consequences," Mr. Levinson said. "We will continue to closely monitor Kindred's compliance with the CIA."


OIG negotiates CIAs with Medicare providers who have settled allegations of violating the False Claims Act. Providers agree to a number of corrective actions, including outside scrutiny of billing practices. In exchange, OIG agrees not to seek to exclude providers from participating in Medicare, Medicaid, or other Federal health care programs. CIAs typically last five years.

The post-acute care world -- which includes hospice, nursing homes, rehabilitation and home care -- is a tough marketplace.  According to a McKnight News report, Kindred is also closing some 18 sites as "underperforming."  For more on Kindred's operations, including its explanation of the penalty as tied to pre-acquisition practices of Gentiva, see this article in Modern Healthcare, "Kindred Pays Feds Largest Penalty Ever Recorded for Integrity Agreement Violations."

September 27, 2016 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Wednesday, September 21, 2016

18th Annual CLE: Special Needs Trusts & Special Needs Planning: Early Bird Ends 9/23/16

Stetson's 18th annual National Conference on Special Needs Trusts & Special Needs Planning takes place on October 19-21, 2016 at the Vinoy Hotel in St. Petersburg, Florida.  Early Bird Registration rates end September 23, 2016. The national conference spans two days, with general sessions in the mornings and three tracks of breakout sessions in the afternoons (basics, advance and administration) Information about the conference, including the agenda, speakers, and links to register is available here. (Full disclosure, I'm the conference chair. Hope to see you at the conference!)

September 21, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Medicaid, Medicare, Other, Programs/CLEs | Permalink | Comments (0)

Tuesday, September 6, 2016

The Continuing Problem of Polypharmacy

Kaiser Health News (KHN) ran the story, ‘America’s Other Drug Problem’: Copious Prescriptions For Hospitalized Elderly, focusing on the problems of polypharmacy in elders. Opening with examples of actual patients, one of whom was taking 36 prescriptions,  the story focuses on the issue of elders taking multiple medications and the implications of doing so.

An increasing number of elderly patients nationwide are on multiple medications to treat chronic diseases, raising their chances of dangerous drug interactions and serious side effects. Often the drugs are prescribed by different specialists who don’t communicate with each other. If those patients are hospitalized, doctors making the rounds add to the list — and some of the drugs they prescribe may be unnecessary or unsuitable.

“This is America’s other drug problem — polypharmacy,” said Dr. Maristela Garcia, director of the inpatient geriatric unit at UCLA Medical Center in Santa Monica. “And the problem is huge.”

Among the problems with polypharmacy noted in the article is whether the patient actually needs the drug and the role of medication issues in the patient's hospitalization.  The numbers are high:

Older adults account for about 35 percent of all hospital stays but more than half of the visits that are marred by drug-related complications, according to a 2014 action plan by the U.S. Department of Health and Human Services. Such complications add about three days to the average stay, the agency said.

Data on financial losses linked to medication problems among elderly hospital patients is limited. But the Institute of Medicine determined in 2006 that at least 400,000 preventable “adverse drug events” occur each year in American hospitals. Such events, which can result from the wrong prescription or the wrong dosage, push health care costs up annually by about $3.5 billion (in 2006 dollars).

The article reviews the instances where patients are prescribed additional prescriptions during hospitalization and on discharge, are confused about what medications to take.  Who becomes the "traffic cop" to keep the patients from undergoing drug-related complications?  The pharmacist! Focusing on the inpatient geriatric unit in one hospital, the story explores the importance of the clinical pharmacist's inclusion in a patient's medical team. The featured hospital hired their clinical pharmacist about 3 years ago, according to the story,  with "[t]he idea was to bring a pharmacist into the hospital’s geriatric unit to improve care and reduce readmissions among older patients." How successful has this been?

Having a pharmacist ... on the team caring for older patients can reduce drug complications and hospitalizations, according to a 2013 analysis of several studies published in the Journal of the American Geriatrics Society.

Over a six-month stretch after [the clinical pharmacist] started working in UCLA’s Santa Monica geriatric unit, readmissions related to drug problems declined from 22 to three. At the time, patients on the unit were taking an average of about 14 different medications each.

This seems like a really great idea and hopefully one that will be picked up by other geriatric units.

September 6, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (1)

Thursday, September 1, 2016

Shortages of CNAs and Qualified Staff Trigger "Relocation" Notices for NHs in Northern California

Giving more evidence of the potential impact of aging boomers in America, officials in Humboldt County, a North Coast county in California, describe potential shutdowns of three area nursing homes as potentially "catastrophic." The reason for the closures?  The problem isn't lack of residents. Operators find it difficult to attract adequate personnel, especially CNAs, needed to staff the care facilities.  From the North Coast Journal article describing the latest problem:

Rockport Healthcare Services, the management company for five of Humboldt County's six skilled nursing facilities, announced today that they have filed relocation notices for three sites: Pacific, Seaview, and Eureka Rehabilitation and Wellness Centers. The relocation notices, filed with the California Department of Public Health, are the first step in closing these facilities, which collectively contain 258 beds, and relocating their patients.


Stefan Friedman, spokesperson for Rockport, said in a statement that the company is continuing to work with community partners to "find a solution to [a] severe staffing crisis," but it is possible that after public health approves their relocation notice they will shut down the facilities.

That, said Area 1 Agency on Aging ombudsman Suzi Fregeau, would be "catastrophic."


Although many patients stay only briefly in skilled nursing facilities, receiving rehabilitation after leaving the hospital, the facilities are often the last stop for patients who cannot afford in-home healthcare professionals and need 24-hour care. Their vital role in the continuum of care was felt last year, when the facilities — five of which are owned by the same company, Brius Healthcare — stopped accepting patients. Hospital administrators, hospice workers and families all felt the pinch, and many North Coast residents had to go to facilities far away from Humboldt County. Fregeau said the potential closure will be even worse.

"It means that residents are going to be placed in facilities a minimum of 150 miles away," she said. "People are going to be dying in communities they’ve never lived in."

Sad to think that some of the prettiest areas of California are struggling with attracting and keeping adequate numbers of trained people.

September 1, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (3)

Monday, August 29, 2016

PACE For Profits

PACE programs can be a great thing for certain Medicare beneficiaries, but the popularity of PACE programs hasn't seemed to grow as much as one might think. The New York Times ran a story on August 20, 2016 about the for-profit model for PACE programs. Private Equity Pursues Profits in Keeping the Elderly at Home explains  that "[u]ntil recently, only nonprofits were allowed to run programs like these. But a year ago, the government flipped the switch, opening the program to for-profit companies as well, ending one of the last remaining holdouts to commercialism in health care. The hope is that the profit motive will expand the services faster."  Is there a significant demand for PACE programs with the Boomers doing their aging thing?  Is a for-profit model the way to go to provide the type of services needed by PACE participants?

The article discusses these issues and presents both sides.  Recall that "[t]he goal of the program, known as PACE, or the Program of All-Inclusive Care for the Elderly, is to help frail, older Americans live longer and more happily in their own homes, by providing comprehensive medical care and intensive social support. It also promises to save Medicare and Medicaid millions of dollars by keeping those people out of nursing homes."

The article also discusses the possible role of tech in providing care, but notes the importance of socialization. CMS had a pilot before approving the for-profit model and is going to keep an eye on things.

The for-profit centers were approved, to little fanfare, after the Department of Health and Human Services submitted the results of a pilot study to Congress in June 2015. The demonstration project, in Pennsylvania, showed no difference in quality of care and costs between nonprofit PACE providers and a for-profit allowed to operate there.

The Centers for Medicare and Medicaid Services has vowed to closely track the performance of all PACE operators by measuring emergency room use, falls and vaccination rates, among other metrics. The National PACE Association, a policy and lobbying group, is also considering peer-reviewed accreditation to help safeguard the program. Oversight is now largely left to state Medicaid agencies.

Stay tuned.

August 29, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Monday, August 22, 2016

Turning Silver Into Gold? Another "Advancement" in Non-Institutional Senior Care

The New York Times on Sunday had an exceptionally well written and important article about the latest trend in senior care.  For-profit companies are now allowed to participate in PACE, the Program of All-Inclusive Care for the Elderly, a Medicare- and Medicaid-approved program designed to permit innovation in care that doesn't require residence in high-priced settings such as traditional nursing homes.  Sarah Varney writes:

Inside a senior center here [in Denver], nestled along a bustling commercial strip, Vivian Malveaux scans her bingo card for a wining number.  Her 81-year-old eyes are warm, lively and occasionally set adrift by the dementia plundering her mind.


Dozens of elderly men and women -- some in wheelchairs, others whose hands tremble involuntarily -- gather excitedly around the game tables.  After bingo, there is more entertainment and activities: Yahtzee, tile-painting, beading. 


But this is no linoleum-floored community center reeking of bleach.  Instead, it's one of eight vanguard centers owned by InnovAge, a company based in Denver with ambitious plans.  With the support of private equity money, InnovAge aims to aggressively expand a little-known Medicare program that will pay to keep oldr and disabled Americans out of nursing homes.

The feature-length article details how "private equity firms, venture capitalizes and Silicon Valley entrepreneurs have jumped" onto the PACE niche. For more on this important development, read Private Equity's Stake in Keeping the Elderly at Home.

My thanks to Laurel Terry and Karen Miller for sharing this article with us. 

August 22, 2016 in Consumer Information, Ethical Issues, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Wednesday, August 3, 2016

Tackling the Issue of "Avoidable Deaths" in Long-term Care Settings

Pennsylvania attorney Douglas Roeder, who often served as a visiting attorney for my former Elder Protection Clinic, shared with us a detailed Penn Live news article on what the investigative team of writers term "avoidable deaths" in nursing homes and similar care settings.  The article begins vividly, with an example from Doylestown in southeastern Pennsylvania:

Claudia Whittaker arrived to find her 92-year-old father still at the bottom of the nursing home's front steps. He was covered by a tarp and surrounded by police tape, but the sight of one of his slim ankles erased any hope it wasn't him.  DeWitt Whittaker, a former World War II flight engineer, had dementia and was known to wander. As a result, his care plan required him to be belted into his wheelchair and watched at all times. Early on Sept. 16, 2015, Whittaker somehow got outside the Golden Living home in Doylestown and rolled down the steps to his death.


"It wasn't the steps that killed him. But the inattention of staff and their failure to keep him safe," his daughter said.

The article is especially critical of recent data coming from for-profit nursing homes in Pennsylvania, pointing to inadequate staffing as a key factor:

In general, according to PennLive's analysis, Pennsylvania's lowest-rated nursing homes are for-profit facilities. Half of the state's 371 for-profit homes have a one-star or two-star rating – twice the rate of its 299 non-profit nursing homes.  The reason for that discrepancy, experts say, isn't complicated: Studies have found that for-profit nursing homes are more likely to cut corners on staffing to maximize profit.

Spokespeople from both the for-profit and nonprofit segments of  the industry are quoted in the article and they push back against the investigators' conclusions.  

I have to say from my own family experience that while adequate staffing in care settings is extraordinarily important, older residents, even with advanced dementia, often have very strong opinions about what they prefer.   My father is in a no restraint dementia-care setting, with a small cottage ("greenhouse") concept and lots of programming and behavioral interventions employed in order to avoid even the mildest of restraints. It was a deliberate choice by the family and my dad walks a lot around the campus and has his favorite benches in sunny spots. 

The trade-off for "no restraints" can be higher risk.  Residents, including my father, are sometimes stunningly adept at escape from carefully designed "safety"plans, such as those necessary in the summer heat of Arizona. Family members often remain essential members of the care team.  For example, this summer I plan my daily visits at the very hottest part of the day, in order to help try to lure my father, a late-in-life sunshine worshiper, back into the cool.  I watch the staff members exhaust themselves intervening with other ambulatory and wheelchair residents who are constantly on the move.

None of this "care stuff" is easy, but certainly the Penn Live article paints a strong picture for why better staffing, better financial resources, and more reality-based plans are necessary.  For more, read "Failing the Frail." Our thanks to Doug for sharing this good article. 

August 3, 2016 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management | Permalink | Comments (0)

Tuesday, August 2, 2016

HHS Guidance for Care in the Most Integrated Setting

Health and Human Services (HHS) Office for Civil Rights issued guidance in late May, 2016 for long term care facilities. The guidance, Guidance & Resources for Long Term Care Facilities: Using the Minimum Data Set to Facilitate Opportunities to Live in the Most Integrated Setting " is on using the minimum data set (MDS) so "residents receive services in the most integrated setting appropriate to their needs."

There are 3 recommendation sections  of the guidance (actually there are 4, but the 4th deals with further resources).  Why did OCR issue this guidance?

OCR has found that many long term care facilities are misinterpreting the requirements of Section Q of the MDS. This misinterpretation can prevent residents from learning about opportunities to transition from the facility into the most integrated setting. We are therefore providing a series of recommendations for steps that facilities can take to ensure Section Q of the MDS is properly used to facilitate the state’s compliance with Section 504 and to avoid discrimination.

The recommendations include a discussion of the importance of knowing about local resources and community based services, ensuring compliance with applicable civil rights laws ("[b]ecause Section Q is designed to assist residents in returning to the community or another more integrated setting appropriate to their needs, proper administration of Section Q of the MDS can further a state’s compliance with civil rights laws.") and the importance of maintaining up-to-date policies and procedures, and training employees.



August 2, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Tough Talk about Health Care Fraud

McKnight's News is a publication for insiders in the long-term care industry, reaching professionals who operate nursing homes, extended care sites, CCRCs and more. John O'Connor, who has been with McKnight's for more than 20 years, recently published  a candid editorial about factors affecting health care fraud in the industry.  He writes:

[G]iven how easy it is to cheat these days, we probably shouldn't be terribly surprised that so many operators give in to temptation. That's especially the case when it comes to invoice preparations. 


Let's be honest: How hard is it to put a resident in a higher RUGs category than is probably accurate? Or to bill for therapy services that were not actually delivered? Or to have therapists working overtime doing services that never should have occurred in the first place? And that, my friends, is just the tip of the proverbial iceberg.


Throw in stiff competition, incentives that reward upcoding, a dearth of interested investigators and good old-fashioned human greed, and what we have here is a breeding ground for creative accounting.

For more, read "It's Time for 'The Talk' About Healthcare Fraud."  

August 2, 2016 in Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Thursday, July 28, 2016

ABA Family Law Quarterly Focuses on "Gray Divorces and Silver Separations"

This week my in-basket sported the latest copy of the Family Law Quarterly and it is a strong lineup of symposium authors writing on a range of issues connected to late-in-life marital woes.  The articles in the Spring 2016 issue include:

  • The Challenging Phenomenon of Gray Divorces, by Paula G. Kirby & Laura S. Leopardi
  • Representing the Elderly Client or the Client with Diminished Capacity, by Robert B. Fleming
  • The Battle for the Biggest Assets: Dissolution of the Military Marriage and Postdivorce Considerations for Aging Clients, by Brentley Tanner
  • Residence Roulette in the Jurisdictional Jungle: Where to Divide the Military Pension, by Mark E. Sullivan
  • Family Support, Garnishment and Military Retired Pay, also by Mark E. Sullivan
  • Premarital Agreements for Seniors, by Peter M. Walzer & Jennifer M. Riemer, and 
  • Financial Abuse of the Dependent Elder: A Lawyer's Ethical Obligations, by Jeanne M. Hannah

In my review of the articles, I would have liked to see more discussion of the potential expectations  of the couple about payment of their respective long-term care costs, especially as a party's carefully signed premarital agreement may prove to be irrelevant to the state's analysis of eligibility for Medicaid to cover long-term care.  In most states, authorities insist on counting assets of both halves of the couple, without regard to any premarital agreement.  This is where "elder law" attorneys can be of help to traditional "family law" attorneys in planning.  Compare this Elder Law Answers' discussion of "Five Myths About Medicaid's Long-Term Care Coverage."

July 28, 2016 in Estates and Trusts, Ethical Issues, Medicaid, Property Management, State Statutes/Regulations, Veterans | Permalink | Comments (1)

Sunday, July 10, 2016

Catastrophic Insurance for Long-Term Services & Supports?

In early June, the Urban Institute released a brief that examines whether  Catastrophic Insurance Improve Financing for Long-Term Services and Supports. The abstract explains

A catastrophic insurance program could improve the way long-term services and supports are financed. The program would require enrollees who need care to wait a few years before they could collect benefits, but then it would provide those benefits as long as necessary. Our modeling results show that such a program could reduce Medicaid spending and provide financial relief to hard-pressed states. It could also reduce out-of-pocket spending for families facing catastrophic costs and fund new services and supports. By setting aside funds to cover future spending, a catastrophic insurance program could also raise national saving.

As we well know, paying for long-term care is a challenge for many. As the authors note, "[c]urrently, most people with LTSS needs rely mostly on unpaid family caregivers for assistance. If they need more help, they generally pay out of pocket until they exhaust their financial resources and then turn to Medicaid. New financing approaches could combine public insurance for catastrophic LTSS costs with initiatives to promote private long-term care coverage for other expenses. Our projections suggest that these options could significantly reduce Medicaid spending and provide better financial protection for older people who develop LTSS needs."

Looking at the ways long-term care is financed by many, the authors consider whether an insurance model might be the answer

New LTSS insurance programs could provide better financial protection to people with disabilities; improve the care they receive; and reduce Medicaid costs, which are creating financial problems for many state governments. By setting aside funds today to cover future LTSS spending, new insurance programs could raise national saving. And they could provide families with stronger incentives to save by reducing reliance on Medicaid, which discourages saving because it only pays benefits to people with virtually no wealth outside of their home. The effectiveness of any new insurance program, of course, depends on its particular features, such as eligibility requirements, the size of the daily benefit, and the financing mechanism.

The authors examine a few models to gauge their workability and conclude

An LTSS catastrophic insurance program that requires enrollees with LTSS needs to wait a few years before collecting benefits but then extends those benefits as long as necessary could substantially improve the way LTSS needs are financed in the United States. Such a program could reduce Medicaid spending, providing financial relief to hard-pressed states. It would also reduce out-of-pocket spending for families facing catastrophic costs and fund new services for older adults with LTSS needs, although these impacts would be somewhat smaller than those from a similar-sized program that provided front-end, but time-limited, benefits. By setting aside funds today to cover future LTSS spending, a new catastrophic insurance program could raise national saving. And it could provide families with stronger incentives to save by reducing reliance on Medicaid, which discourages saving because it only pays benefits to people with virtually no wealth outside of their home. 

Program details need further analysis. We modeled only a few options, and alternative designs could have different effects. For example, a new insurance program could provide larger daily benefits, which would reduce Medicaid and out-of-pocket spending more than the plan we modeled but would also require more funding. Or new programs could require enrollees to wait even longer to receive benefits than the program we modeled, which would offset less Medicaid and out-of-pocket spending but cost less. Our research is only the first step in the analysis required to design new LTSS financing programs, but it illustrates the potential power of our simulation tool in demonstrating how new options can interact with existing programs.


July 10, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Thursday, July 7, 2016

Consolidation of Long-Term Services & Supports-What if?

Our good friend and prolific author, Professor Marshall Kapp, let us know about his most recent article, Speculating About the Impact of Healthcare Industry Consolidation on Long-Term Services and Supports.  The article is published as the lead article in volume 25, issue 2 of the Annals of Health Law.   Here is the abstract of the article

The current health industry consolidation movement promises to exert an important and powerful array of effects on numerous different population groups seeking or receiving health services in a variety of different health care settings. Particularly regarding the potential impact of health industry consolidation on individuals contemplating, seeking, or obtaining long-term services and supports (LTSS), little is yet known but much may be plausibly speculated. This article joins in that speculation, but attempts to advance the constructive consideration of the topic by offering some suggestions for a research agenda to investigate specific empirical questions about consolidation’s impact on LTSS and thereby generate evidence and knowledge that can be used to either reduce or prevent negative aspects of consolidation for LTSS, on one hand, or foster and facilitate the achievement of positive effects, on the other.

Professor Kapp concludes:

The current, and probably continuing, consolidation of health services providers, producers, and sellers of healthcare products, as well as third-party payers for health services and products, inevitably will exert a variety of impacts on healthcare consumers generally and within specific contexts. Actual and potential consumers of LTSS, as well as their families, are likely to be affected in unique ways, differing to a large extent depending on the way that respective groups of consumers now finance their own LTSS. Little significant data is available yet regarding such effects, but speculation nonetheless abounds. This article joins in this basically uninformed but plausible speculation exercise but, I hope, adds constructively to the discussion by suggesting the rudiments of a health services research agenda that leads eventually to evidence-informed public policy making and private sector conduct that optimizes consolidation’s impact on consumers’ interests in access to, affordability of, and quality received in the realm of LTSS.

Thanks Marshall for letting us know and congratulations on the publication!


July 7, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Tuesday, July 5, 2016

Special and Supplemental Needs Trust To Be Highlighted At July 21-22 Elder Law Institute in Pennsylvania

In Pennsylvania each summer, one of the "must attend" events for elder law attorneys is the annual 2-day Elder Law Institute sponsored by the Pennsylvania Bar Institute.  This year the program, in its 19th year, will take place on July 21-22.  It's as much a brainstorming and strategic-thinking opportunity as it is a continuing legal education event.  Every year a guest speaker highlights a "hot topic," and this year that speaker is Howard Krooks, CELA, CAP from Boca Raton, Florida.  He will offer four sessions exploring Special Needs Trusts (SNTs), including an overview, drafting tips, funding rules and administration, including distributions and terminations.

Two of the most popular parts of the Institute occur at the beginning and the end, with Elder Law gurus Mariel Hazen and Rob Clofine kicking it off with their "Year in Review," covering the latest in cases, rule changes and pending developments on both a federal and state level.  The solid informational bookend that closes the Institute is a candid Q & A session with officials from the Department of Human Services on how they look at legal issues affected by state Medicaid rules -- and this year that session is aptly titled "Dancing with the DHS Stars." 

I admit I have missed this program -- but only twice -- and last year I felt the absence keenly, as I never quite felt "caught up" on the latest issues.   So I'll be there, taking notes and even hosting a couple of sessions myself, one on the latest trends in senior housing including CCRCs, and a fun one with Dennis Pappas (and star "actor" Stan Vasiliadis) on ethics questions.

Here is a link to pricing and registration information.  Just two weeks away!


July 5, 2016 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)

Wednesday, June 15, 2016

Nebraska Mandates Protection for Health Care Whistleblowers

In a recent McKnight's News column, Registered Nurse Pam McKnally wrote an interesting and candid account of "What It's Like to Be a Nurse Whistleblower."  Her experiences with retaliation  -- indeed bullying-- after she complied with laws requiring to her report observations of improper use of narcotics in the workplace led her and others to advocate for changes in the law.

In April 2016, in response to the experiences of McKnally and others, Nebraska enacted changes to state law, prohibiting retaliation against whistleblowers and mandating confidentiality for the identities of anyone making reports of violations by "credentialed" health care providers. Nebraska Legislative Bill 750, amending Nebraska's law that governs a broad range of health care providers, specifies:

An individual or a business credentialed pursuant to the Uniform Credentialing Act shall not discriminate or retaliate against any person who has initiated or participated in the making of a report under the act to the department of [health and human services].  Such person may maintain an action for any type of relief, including injunctive and declaratory relief, permitted by law. 

Further, the law now provides that "The identity of any person making such a report [of suspected violations] or providing information leading to the making of a report shall be confidential" and further, "The identify of any person making a report, providing information leading to the making of a report, or otherwise providing information to the department, a board, or the Attorney General included in such reports, complaints or investigational records shall be confidential whether or not the record of the investigation becomes a public record."

Whether the changes to Nebraska law, especially in the absence of a specific statutory sanction for retaliation or breach of confidentiality, will be effective to address the backlash experienced by McNally will bear monitoring.  She cautions:

I resigned, as my work life was intolerable, and it was clear that I was about to get fired. The EOC investigated my claims. The costs in employee hours and attorney fees, plus fines for violations can be astronomical. Had the situation been handled differently by the Human Resource department, the outcome may have been much different.


It is time for employers to stop blaming and discrediting professionals who simply follow the law and advocate for themselves and their patients....


When nurses are happy they work hard. They are loyal and seek out constructive ways to help their organization deal with conflict. In long-term care, Medicare and Medicaid cuts mean money needs to be saved now more than ever. Keeping a business viable includes mitigating the need for attorneys and dealing with nurse turnover.

June 15, 2016 in Crimes, Current Affairs, Discrimination, Ethical Issues, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, June 8, 2016

Will President Obama be Remembered as a Leader in Fighting Healthcare Fraud?

The Office of Inspector General issues regular reports to Congress, and the most recent report indicates that for the period of October 1, 2016 to March 31, 2016,  the total amount of expected recoveries arising from allegations of healthcare fraud was $2.77 billion.  That number is "up" by a billion dollars over the first half of fiscal year 2016.  

Here's a link to the most recent OIG report and here's a link to a recent article about the numbers in McKnight's Long Term Care News


June 8, 2016 in Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Statistics | Permalink | Comments (0)

Monday, June 6, 2016

Family Assistance & HCBS Medicaid

Justice in Aging (formerly known to many of us as the National Senior Citizens Law Center) covered a timely and important topic in their May, 2016 Issue Brief. Voluntary Means Voluntary: Coordinating Medicaid HCBS with Family Assistance was authored by Eric Carlson, well know nationally for his work regarding residents of long term care facilities. The issue brief runs 8 pages. Here is the executive summary: 

When an older adult can no longer can live independently, and is eligible for Medicaid, he or she often qualifies for home and community-based services (HCBS) that enable the individual to stay at home, rather than move to a nursing facility or other health care institution. The same is true for persons with disabilities. HCBS are provided under a service plan; under federal Medicaid regulations effective since March 2014, those service plans cannot compel unpaid assistance by family members such as adult children.

As illustrated by Medicaid hearing decisions from Florida, however, state Medicaid programs (frequently through managed care organizations) often compel unpaid assistance from family members. The managed care organizations (MCOs) authorize service levels with the presumption that family members should be  providing a certain level of personal care assistance. This leads to a lower level of Medicaid-funded service hours, which in turn requires family members to provide assistance to cover the service gap.

One problem in Florida is a "medical necessity" definition that denies Medicaid-funded services to the extent that those services are provided for caregiver convenience. This definition has been cited by MCOs and hearing officers to justify reduced levels of services, even when the caregiver’s "convenience" is his or her need to hold employment outside the home. Furthermore, twelve other states also have a similar "caregiver convenience" provision in the state’s Medicaid medical necessity definition.

In Florida and across the country, Medicaid beneficiaries and their advocates should address this problem. Florida advocates have made some progress in this area, and the state now agrees that service authorizations should respect a family caregiver’s outside employment. The Florida experience suggests the type of advocacy that could and should be pursued in Florida and other states. In individual service requests and appeals, beneficiaries and advocates should forcefully assert the voluntariness requirement of the federal service planning regulations. On a systemic level, advocates should argue for the removal or revision of "caregiver convenience" provisions, and advocate for service authorization procedures that explicitly incorporate the voluntariness requirement.

This issue brief is a "must read" for all elderlaw profs, attorneys and other advocates.  A pdf of the issue brief is available here.

June 6, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)