Thursday, September 11, 2014
Judge Geraci of the U.S. District Court, Western District of New York, is the latest judge to address an important topic in Elder Law regarding eligibility for long-term care benefits under Medicaid. The court defines the issue as follows: "When an uncompensated transfer of assets has been made and a [Medicaid] penalty period imposed, how does a partial return of the transferred funds affect the beginning of the penalty period?"
In its August 2014 decision in Aplin v. McCrossen, the court addresses summary judgment motions in two separate cases that were filed on behalf of 80-year-old Florence Aplin and 85-year old Sergio Ciardi, both residents of nursing homes. In one case, for example, the Aplin case, the transfers totaled approximately $450,000; however, approximately $76,000 was later returned by the donees. The hope of the plaintiffs was that "return" of the money would permit them to shorten their penalty periods tied to the original transfers. This approach, when planned in advance, is a post-Deficit Reduction Act technique sometimes known in Elder Law circles as a "partial cure" (as part of "reverse half-a-loaf" gifting).
Judge Geraci denied the relief sought by the plaintiffs. He followed the hardline approach of "nonprecedential" rulings on New Jersey disputes about partial cures, ruling that "return" of money permits the state agency to recalculate the start of the penalty period. The court decided that NY administrative rules do not conflict with federal policy and not only permit but require the state agency to, in effect, restart the penalty period on the ground that the later date is when the "applicant becomes otherwise eligible for Medicaid." This phrase is a key concept in federal Medicaid law. The plaintiffs had argued that phrase applied only to an earlier date, from their original application. Judge Geraci concluded:
"I find no circumstances in this case which indicated that Defendants' interpretation and application of the provisions of [New York administrative directives] contravene Congress' articulated purpose in enacting the Medicaid Act -- to provide medical care, services and supplies for the financially needy. Essentially, the assessment of an applicant's income and resources which results in a determination that such applicant has transferred resources for less than fair market value during the statutory look-back period and that an appropriate penalty period must be imposed, ensures that the applicant has not falsely impoverished himself or herself in order to qualify for medical assistance at public expenses which, by law, is undeserved."
While it is apparent that the New York federal judge was not eager to give applicants any benefit tied to partial cures on transfers, the decision also appears to approve or at least ignore what some would describe as a "perverse effect" of the New York policy. By imposing a new, later "start date" for the ineligibility period following the return, New York can actually impose a penalty that is longer than the original penalty period for the full transfer.
Also at issue in the case was the effect of a series of statements on the federal government's side, including the so-called "McGreal Letter" from CMS that was relied on by the plaintiffs in making the returns. (The court did not expressly address a May 2014 GAO study, where it was reported at page 28 that "[a]ccording to CMS, states can choose whether or not to consider a partial return of transferred assets on Medicaid planning.")
Should there be uniformity among the states, not just on whether but how families can seek any relief from "resource" limits set by federal law? (The GAO study linked above indicates a range of different state-specific options are in play.) The answer to that question may depend on one's point of view.
For more background on the complex interaction between Medicaid applications, ineligibility periods triggered by uncompensated transfers, partial cure attempts and penalty start dates, see ElderLawGuy Jeff Marshall's blog post from 2011.
Friday, August 29, 2014
From Kaiser Health News (in partnership with NPR and Capitol Public Radio):
"A bill passed by the California legislature this week is putting Gov. Jerry Brown in a delicate position: Sign the measure and support consumer demands for a change in the state’s policy on recovering assets from Medicaid enrollees or keep the current system that generates about $30 million used to provide Medicaid benefits to more residents.
The governor typically does not comment on bills until he receives the actual text from the legislature. His Department Of Finance, however, opposes the bill, pointing out that the recovered assets help the state provide services to others. The bill that just passed the legislature this week, would prohibit the state from trying to recoup some of the money spent on older Medicaid enrollees for ordinary health coverage by recovering assets after they die.
Federal law requires states to recoup money spent on institutional care, such as nursing homes, by Medicaid, the state-federal health care program for low-income people. But it also allows states to recover costs from people after they die if they received basic medical services through Medicaid at the age of 55 or older.
In California, advocates of the bill say the current law is complicating enrollment in Medi-Cal, the state’s Medicaid program, with some people refusing to sign up, and others terminating enrollment for fear of not being able to pass on their estate.The state has enrolled 2.2 million people into Medi-Cal under the Affordable Care Act."
Thursday, August 21, 2014
Wow! Medicaid transfer rules argued in prime time! (Well, almost...)
On August 20, the Ohio Supreme Court heard oral argument on Estate of Atkinson v. Ohio Dept. of Job & Family Services, Case No. 2013-1773. Video of the presentations (including the very interesting questions from the bench) can now be viewed here on the Ohio Channel.
This strikes me as a great opportunity for Elder Law course students to read briefs and observe lawyers in oral argument tackle technical, challenging legal issues (listen to the Court ask one attorney to slow down and explain his use of pronouns). Can you predict the outcome? Note: The Supreme Court's arguments on Ohio Channel appear as high quality productions, well edited, with subtitles indicating the names of the speakers and the identity of the issues on appeal, and the website is searchable for other appellate cases for faculty members looking for examples to use in other classes.
As framed in the appeal, the issue is whether the community husband's actions triggered a period of ineligibility for Medicaid benefits for his wife in the nursing home. The record showed the husband transfered the couple's home "out" of the couple's long-standing revocable trust to the name of the institutionalized spouse, and then in turn, the same day, to the community spouse. As described in one news account:
"The county department of job and family services found that the transfer of the home, valued at $53,750, was improper because it violated federal and state Medicaid rules. While Mrs. Atkinson’s Medicaid benefits were approved, the agency temporarily excluded nursing-home care from her coverage because of the transfer."
The state has been successful with its arguments before state agencies up to this point. The Ohio Supreme Court, however, asked the attorneys about the applicability and relevance of the 6th Circuit's 2013 decision in Hughes v. McCarthy regarding permitted use of spousal annuities in Medicaid planning in Ohio. During the oral argument, one Justice also asks whether the state should be bound by the position taken by the federal agency, Health and Human Services (apparently in an amicus brief), in support of the family's argument.
There are also opportunities here to think about whether -- and how -- this particular transfer issue might have been avoided with different planning.
Wednesday, July 30, 2014
John Washlick, a shareholder with Buchanan Ingersoll & Rooney in Philadelphia and Princeton, provides a concise and useful overview of laws that form the basis for claims of "fraud" or "abuse" associated with Medicare and Medicaid in the most recent issue of Pennsylvania Bar Quarterly (April 2014, available also on Westlaw). The abstract to his article, "Health Care Fraud and Abuse," provides:
"Medicare and Medicaid combined comprise the largest payer of health care services in the world, and account for over 20 percent of all U.S. government spending. As a result, efforts to combat fraud and abuse in these programs have become a congressional and administrative priority. This article will address four significant federal fraud and abuse laws: (i) Anti-Kickback Statute, (ii) "Stark" Anti-Referral Law, (iii) Civil Monetary Provisions, and (iv) False Claims Act (Civil and Criminal). The Patient Protection and Affordable Care Act, more commonly referred to as the "Affordable Care Act" significantly strengthened each of these laws, including increased funding to step up enforcement actions. There are other federal and state statutes that are aimed at curbing fraud and abuse and they should not be ignored when reviewing a financial arrangement between or among potential referral sources."
A useful guide, especially when reading about multi-million dollar settlements in whistleblower cases growing out of nursing home care, home care, hospice care, and pharmaceutical sales, such as the Omnicare settlement reported on the Elder Law Prof Blog today.
From the Department of Justice, news of the False Claims Act settlement reached with Omnicare Inc., "the nation's largest provider of pharmaceuticals and pharmacy services to nursing homes." The company has agreed to pay $124.24 million "in return for their continued selection" as the supplier of drugs to elderly Medicare and Medicaid beneficiaries. The claims related to improper discounts allegedly given by Omnicare as incentives for doing business with the company.
According to the DOJ press release, the settlement resolves two lawsuits filed by whistleblowers under the qui tam provisions of the False Claims Act. "The first whistleblower, Donald Gale, a former Omnicare employee, will receive $ 17.24 million."
DOJ states that since January 2009, it has "recovered a total of more than $19.5 billion through False Claims Act cases," including more than $13.9 billion in cases alleging fraud associated with health care programs.
Monday, July 28, 2014
Recently a former law student who is considering a career change asked me about elder law, wanting to meet with me to discuss what is involved. I'm happy to chat any time with current and former students, especially about elder law, but this time my advice was simple: "Drop everything and go to Pennsylvania's 2014 Elder Law Institute." Indeed, this year saw some 400 individuals attend.
Important to my advice was the fact that ELI is organized well for both "newbies" and more experienced practitioners. After the first two-hour joint session, over the course of two days there are four sessions offered every hour. One entire track is devoted to "Just the Basics" and is perfect for the aspiring elder law attorney. Indeed, I usually sponsor two Penn State law students to attend. As in most specializations, in elder law there will is a steep learning curve just to understand the basic jargon, and the more exposure the better.
One of my favorite sessions is the first, "The Year in Review," a long tradition at ELI and currently presented by Marielle Hazen and Rob Clofine. Marielle reviews new legislation and regulations, both at the state and federal level, while Rob does a "Top Ten Cases" review. Both speakers focus not just on what happened in the last 12 months, but what could or should happen in the future. They frequently pose important policy perspectives, based on recent events.
Among the highlights from the year in review session:
- Analysis of the GAO Report on "Medicaid: Financial Characteristics of Approved Applicants and Methods Used to Reduce Assets to Qualify for Nursing Home Coverage" released in late June 2014. Data collection efforts focused on four states and reportedly included "under cover" individuals posing as potential applicants. The report summarizes techniques used to reduce countable resources, most occuring well within the rules and thus triggering no question of penalty periods. Whether Congress uses the report in any way to confirm or change existing rules remains to be seen.
- A GAO Report on Medicaid Managed Care programs, also released in June, concluding that additional oversight efforts are needed to ensure the integrity of programs in the states, which are already reporting higher increases in outgoing funds than fee-for-service programs.
- The need to keep an eye open for Pennsylvania's Long Term Care Comission report, expected by December 2014. Will it take issue with the Governor's rejection of the Affordable Care Act's funding for expansion of Medicaid?
- Report on a number of lower court decisions involving nursing home payment issues, including a report on a troubling case, Estate of Parker, 4 Pa. Fiduciary Reporter 3d 183 (Orphans' Court, Montgomery County, PA 2014), in which a court-appointed guardian of the estate of an elderly nursing home patient "agreed" to entry of a judgment, not just for nursing home charges, but also for pre- and post-judgment interest, plus attorneys' fees for the nursing home's lawyer of almost 20% of the stipulated judgment, in what was an uncontested guardianship.
In light of the number of nursing home payment cases in Rob's review, perhaps it wasn't a surprise that my co-presenter, Stanley Vasiliadis, and I had a full house for our session on "Why Am I Being Sued for My Parents' Nursing Home Bill?" We examined how adult children (and sometimes elderly parents of adult children in care) are finding themselves the target of collection efforts by nursing homes, including actions based on theories of breach of promise (contract, quatum meruit, and promissory estoppel), fault (common law fraud or statutory claims of "fraudulent transfers), or family status, such as statutory filial support.
The extensive course materials from all of the presenters, both in hard copy and electronic formats, are available for purchase directly from the Pennsylvania Bar Institute.
July 28, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, July 24, 2014
The CarTalk Guys on National Public Radio have a crazy tradition of breaking their one hour radio program into "three halves" (okay, they have a lot of crazy traditions -- I'm focusing on just one). In that tradition, I'd been thinking about how the practice of "elder law" might also have three halves, but then I realized that perhaps it really has five halves. See what you think.
- In the United States, private practitioners who call themselves "Elder Law Attorneys" usually focus on helping individuals or families plan for legal issues that tend to occur between retirement and death. Many of the longer-serving attorneys with expertise in this area started to specialize after confronting the needs of their own parents or aging family members. They learned -- sometimes the hard way -- about the need for special knowledge of Medicare, Medicaid, health insurance and the significance of frailty or incapacity for aging adults. They trained the next generations of Elder Law Attorneys, thereby reducing the need to learn exclusively from mistakes.
- Closely aligned with the private bar are Elder Law Attorneys who work for legal service organizations or other nonprofit law firms. They have critical skills and knowledge of health-related benefits under federal and state programs. They also have sophisticaed information about the availability of income-related benefits under Social Security. They often serve the most needy of elders. Their commitment to obtain solutions not just for one client, but often for a whole class of older clients, gives them a vital role to play.
- At the state and federal levels, core decisions are made about how to interpret laws affecting older adults. Key decisions are made by attorneys who are hired by a government agency. Their decisions impact real people -- and they keep a close eye on the financial consequences of permitting access to benefits, even if is often elected officials making the decisions about funding priorities. I would also put prosecutors in this same public servant "Elder Law" category, especially prosecutors who have taken on the challenge of responding to elder abuse.
- A whole host of companies, both for-profit and nonprofit, are in the business of providing care to older adults, including hospitals, rehabilitation centers, nursing homes, assisted living facilities, group homes, home-care agencies and so on -- and they too have attorneys with deep expertise in the provider-side of "Elder Law," including knowledge of contracts, insurance and public benefit programs that pay for such services.
- Last, but definitely not least, attorneys are involved at policy levels, looking not only to the present statutes and regulations affecting older adults, but to the future of what should be the legal framework for protection of rights, or imposition of obligations, on older adults and their families. My understanding and appreciation of this sector has increased greatly over the last few years, particularly as I have come to know human rights experts who specialize in the rights of older persons.
Of course, lawyers are not the only persons who work in "Elder Law" fields and it truly takes a village -- including paralegals, social workers, case workers, health care professionals, and law clerks -- to find ways to use the law effectively and wisely. Ironically, at times it can seem as if the different halves of "elder law" specialists are working in opposition to each other, rather than together.
My reason for trying to identify these "Five Halves" of Elder Law is that, as with most of us who teach courses on elder law or aging, I have come to realize I have former students working in all of these divisions, who began their appreciation for the legal needs of older adults while still in law school. Organizing these "halves" may also help in organizing course materials.
I strongly suspect I'm could be missing one or more sectors of those with special expertise in Elder Law. What am I forgetting?
Monday, July 21, 2014
Leslie Frances, Associate Dean for Faculty Research Development at University of Utah Law, has an interesting post on the Health Law Prof Blog about challenges to states that have failed to provided Medicaid coverage for needs of residents in "assisted living," as opposed to "skilled nursing" care settings. Here are two such cases she describes:
First, Idaho providers of supported living services brought suit in 2009 challenging the Idaho legislature’s failure to appropriate sufficient funds. The state’s rate-setting study had recommended a substantial increase in funds, but the legislature did not approve the increase. The district court granted summary judgment to the providers and the 9th Circuit affirmed in a very brief opinion in April 2014. The district court’s reasoning, upheld by the 9th Circuit, was that the Medicaid Act requires state rates to be “‘consistent with efficiency, economy, and quality of care and … sufficient to enlist enough providers’ to meet the need for care and services in the geographic area. 42 U.S.C. § 1396a(a)(30).” Exceptional Child Center v. Armstrong , 2014 WL 1328379 (April 14, unpublished). Purely budgetary reasons such as those cited by Idaho do not suffice to meet this standard. Last week, Idaho appealed the 9th Circuit decision to the Supreme Court.
Second, independent living centers in Southern California have brought suit challenging California’s method for enrolling dual eligibles into managed care programs. Such efforts, touted as improving care coordination, come under criticisms that they are instead merely methods of cost control that will result in the loss of essential services. The plaintiffs are Communities Actively Living Independent & Free, the Westside Center for Independent Living, and Southern California Rehabilitation Services, Inc.; they seek to enjoin what they contend is California’s confusing notice to dual eligible about their impending reenrollment and how to opt out of it. Westside Center for Independent Living vs. California Department of Health Care Services, Cal. Civil No. 34-2014-080001884 (filed July 2, 2014).
My own state of Pennsylvania is one of the states that has, in theory, obtained approval from HHS to use Medicaid in assisted living facilities, but even after several years, funding has not been implemented. Across the state line in New Jersey, low income/asset residents in assisted living are eligible to apply for Medicaid.
Sunday, July 20, 2014
The growing significance and scope of "elder law" is demonstrated by the program for the upcoming 2014 Elder Law Institute in Philadelphia, Pennsylvania, to be held on July 24-25. In addition to key updates on Medicare, Medicaid, Veterans and Social Security law, plus updates on the very recent changes to Pennsylvania law affecting powers of attorney, here are a few highlights from the multi-track sessions (48 in number!):
- Nationally recognized elder law practitioner, Nell Graham Sale (from one of my other "home" states, New Mexico!) will present on planning and tax implications of trusts, including special needs trusts;
- North Carolina elder law expert Bob Mason will offer limited enrollment sessions on drafting irrevocable trusts;
- We'll hear the latest on representing same-sex couples following Pennsylvania's recent court decision that struck down the state's ban on same-sex marriages;
- Julian Gray, Pittsburgh attorney and outgoing chair of the Pennsylvania Bar's Elder Law Section will present on "firearm laws and gun trusts." By coincidence, I've had two people this week ask me about what happens when you "inherit" guns.
Be there or be square! (Who said that first, anyway?)
July 20, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, July 16, 2014
From the New York Times on July 16, 2014, this news of a class action lawsuit challenging dramatic cuts in Medicaid funding for home care:
"A federal class action lawsuit filed late Tuesday accuses New York State health officials of denying or slashing Medicaid home care services to chronically ill and disabled people without proper notice, the chance to appeal or even an explanation, protections required by law.
The lawsuit, filed in United States District Court for the Southern District of New York, names three plaintiffs: an impaired 84-year-old woman living alone in Manhattan, a frail 18-year-old Brooklyn man with severe congenital disabilities, and a 65-year-old Manhattan man with diabetes and a schizoaffective disorder. But it was brought by the New York Legal Assistance Group on behalf of tens of thousands of disabled Medicaid beneficiaries who need home health care or help with daily tasks like bathing and eating."
For the full New York Times article, see Nina Bernstein on "Medicaid Home Care Cuts are Unjust, Lawsuit Says."
Monday, June 9, 2014
Last week, the Second Circuit Court of Appeals ruled that a district court's rejection of a proposed Securities and Exchange Commission (SEC) settlement for $285 million -- because of the absence of any admissions by defendant Citigroup -- was improper. In SEC v. Citigroup Global Markets, a case that arose from investigations into fraud following the financial industries meltdown, the Second Circuit observed that while the court has an obligation to review consent degrees to determine generally the "legality" of the terms and may consider whether the settlement is "fair and reasonable, to demand admissions as a condition of settlement goes too far.
The Second Circuit said, "It is an abuse of discretion to require, as the district court did here, that the S.E.C. establish the 'truth' of the allegations against a settling party as a condition for approving the consent decrees.... Trials are primarily about the truth. Consent decrees are primarily about pragmatism.... Consent decrees provide parties with a means to manage risk."
In cases where injunctive relief is part of the settlement, the Second Circuit said the trial court is permitted to analyze the enforceability of the terms, as a matter of "public interest."
The Wall Street Journal, in reporting on the June 4 decision, observed that the decision "eases pressure" on prosecutors and regulators "to exact admissions of wrongdoing in settlements with companies."
After reading the SEC-related decision, it would seem the same reasoning would govern settlements of federal Medicare and Medicaid fraud suits, including whistleblower cases, such as the multi-million dollar settlements in recent months involving nursing home care, pharmaceutical sales, and hospice, thus explaining how millions in de facto fines often involve no admissions of wrongdoing.
Or as I sometimes describe such agreements to settle, defendants must decide whether they can live with the financial effect of the monetary terms, and must promise merely to never do again what they say they never did before.
But I worry, will customers -- which in Medicare and Medicaid cases, usually means seniors and disabled persons -- be the ones who pay the downstream price of the settlement, especially without clear admissions of wrongdoing in the past?
Friday, June 6, 2014
Is Community Spouse's IRA Countable in Determining Medicaid Eligibility? Arkansas Supreme Court Says "Yes"
In Arkansas Department of Human Services v. Pierce, the Arkansas Supreme Court ruled on May 29 that individual retirement accounts owned by a wife were "countable" in determining her husband's eligibility for Medicaid as a resident in a nursing home in Arkansas. In so ruling, and treating the issue as a matter of first impression in Arkansas, the Court rejected the analysis of a Wisconsin court, and aligned itself with the analysis of a New Jersey Court in determining that the state's decision -- to include IRAs owned by either spouse in the "snapshot" of resources subject to spend-down -- did not violate federal law.
In this case, the community spouse may be significantly affected, depending on her own lifespan. Hoping that her husband of 46 years would improve and not need to stay in a nursing home, it appears she had already paid "privately" for nursing home care for 18 months. With the ruling, if her husband continues to need nursing care, she will be allowed to keep $109,560, and thereby will likely spend much of her IRA savings (totaling about $350,000) towards his care.
This fact pattern arguably explains one of the reasons why Elder Law professionals have turned to Medicaid-qualified annuities and other permitted planning tools, to convert countable "resources" into uncountable "income," thereby better assisting the community spouse in financing his or her own final years, particularly if the community spouse hopes to stay at home as long as possible. Will community spouses get timely, qualified assistance with such planning?
Thursday, June 5, 2014
Does a resident have a private right of action for violation of key provisions of the federal Nursing Home Reform Act?
For example, federal Medicare/Medicaid Law specifies residents have certain "Transfer and Discharge Rights." A certified nursing facility must permit each resident to "remain in the facility" and must "not transfer or discharge the resident" except for certain specified reasons, usually requiring 30 days advance notice. But what happens if a facility ignores the limitations on acceptable grounds for transfer or discharge, including the 30 day notice requirement?
In its decision on May 12, 2014 in Schwerdtfeger v. Alden Long Grove Rehabilitation and Health Care Center, the federal district court in the Northern District of Illinois ruled that a discharge improper under federal law does not trigger a private statutory remedy. As described in the clearly written decision, an abrupt transfer of the resident from the nursing home into a hospital followed the resident's "verbal dispute with a nurse" and another resident. While federal law permits transfers where there someone's safety or health is endangered, it does not appear from the decision that the nursing home claimed the verbal dispute created such a danger.
Nonetheless, the court dismissed the resident's federal claim, concluding that the statutory language regarding discharge and transfer rights in Medicare and Medicaid law "does not manifest a 'clear and unambiguous' Congressional intention to create private rights in favor of individual nursing facility residents.... The NHRA [Nursing Home Reform Act] provides an administrative process in the state courts rather than a private remedy in federal court."
In so ruling, the federal district court declined to follow the analysis of the Third Circuit in Grammer v. John J. Kane Regional Centers-Glen Hazel, 570 3d 520 (3d Cir. 2008), which as a "matter of first impression" ruled that the NHRA was sufficiently "rights creating" that it could trigger a cause of action regarding quality of care under Section 1983.
My question, reflecting my teaching interests no doubt, is whether the nursing home's discharge was a breach of contract? Most nursing home contracts I've reviewed either directly or indirectly "adopt" the protections of the NHRA as specific rights of their residents. (Indeed, I would be leery of any nursing home that did not do that.) So, even if not a violation of federal law, wouldn't such a discharge breach the contract? I suspect there is probably a court decision or law review article on this topic -- perhaps our readers have a citation?
Of course, in seeking a right to sue directly under the NHRA, the resident was probably also seeking a right to claim attorneys' fees under the civil rights law; breach of contract claims, even if successful, may not make a claimant "whole" because of the likelihood of small consequential damages and no contractual right to seek attorneys' fees. It is not clear from the Schwerdtfeger decision whether a breach of contract claim was alleged, although the federal court did "decline" to exercise supplemental jurisdiction over the plaintiff's "state law claims."
Wednesday, May 28, 2014
Led by Momotazur Rahman, Department of Health Services Policy and Practice at Brown University, researchers at Brown and Harvard have analyzed placements in nursing homes for Medicare-only and "dual-eligible" Medicare/Medicaid individuals. In their May 2014 study published (and linked here) in Medical Research and Review, they conclude that the low-income patients are more likely to be sent to lower quality (as measured by staffing radios) nursing homes. Their abstract outlines their call for reform for referral processes:
"Medicare and Medicaid dual-eligible beneficiaries use more medical care and experience worse health outcomes than Medicare-only beneficiaries. This article points to a possible inefficiency in the skilled nursing facility (SNF) admission process, specifically that patients and SNFs are partially matched based on dual-eligibility status, and investigates its influence on patients’ SNF length of stay. Using a set of fee-for-service beneficiaries newly admitted for Medicare-paid SNF care, we document two findings: (1) compared with Medicare-only patients, dual-eligibles are more likely to be discharged to SNFs with low nurse-to-patient ratios and (2) dual-eligibles are more likely to become long-stay nursing home residents than Medicare-only beneficiaries if treated in SNFs with low nurse-to-patient ratios. We conclude that changes in the current SNF care referral process have the potential to reduce excess SNF utilization by dual-eligible beneficiaries and could help reduce spending by both Medicare and Medicaid."
One would hope that a corollary to reforming referral processes to "save money" would be improvements in the quality of life and care for dual-eligibles. Additional analysis of the study is available at McKnights News.
Thursday, May 15, 2014
Maryland Elder Law and Disability Law specialist Ron Landsman provides a thoughtful analysis of use of trusts, especially "special needs trusts," to assist families in effective managment of assets. His most recent article, "When Worlds Collides: State Trust Law and Federal Welfare Programs," appears in the Spring 2014 issue of the National Academy of Elder Law Attorneys (NAELA) Journal. Minus the footnotes, his article begins:
"'Special needs trusts,' which enable people with assets to qualify for Supplemental Security Income (SSI) and Medicaid, are the intersection of two different worlds: poverty programs and the tools of wealth management. Introducing trusts into the world of public benefits has resulted in deep confusion for public benefit administrators. . . . The confusion arising from the merger of trust law with public benefits is sharply drawn in the agencies' [Social Security Administration (SSA) and Centers for Medicare and Medicaid Services (CMS)] attempts to define what it means for a trust to be for the sole benefit of the public benefits recipient. Public benefits administrators have focused on the distributions a trustee makes rather than the fiduciary standards that guide the trustee. The agencies have imposed detailed distribution rules that range from the picayune to the counterproductive and without regard, and sometimes contrary, to the best interests of the disabled beneficiary."
Drawing upon his experience in drafting trusts for disabled persons, Ron takes on the challenge of explaining how and where he sees the agencies' focus on "distribution" as misguided. He contends, for example:
"The [better] task for CMS and SSA [would be] to use their authority to develop standards and guidelines that utilize, rather than thwart, competent, responsible, properly trained trustees as their partners in making special needs trusts an effective tool in serving the needs of people with disabilities. If this were done properly, capable trustees would be the allies of the federal and state agencies in the efficient use of limited private resources. Beneficiaries would live better, more rewarding lives to the extent that resources can make a difference, at a lower cost to Medicaid, with a greater possibility of more funds recovered through payback."
Ron is detailed in his critique of agency guidelines and manuals, and he provides clear examples of his "better" sole benefit analysis.
May 15, 2014 in Estates and Trusts, Federal Cases, Health Care/Long Term Care, Housing, Medicaid, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 14, 2014
It occurs to me that what I'm about to write here is a mini-review of a mini-book. Slightly complicating this little task is the fact that I count both authors as friends and mentors.
The latest edition of Elder Law in a Nutshell by Professors Lawrence Frolik (University of Pittsburgh) and Richard Kaplan (University of Illinois) arrived on my desk earlier this month. (As Becky might remind us, both are definitely Elder Law's "rock stars.") And as with fine wine, this book, now its 6th edition, becomes more valuable with age. This is true even though achieving the right balance of simplicity and detail cannot be an easy task for authors in the intentionally brief "Nutshell" series. Presented in the book are introductions to the following core topics:
- Ethical Considerations in Dealing with Older Clients
- Health Care Decision Making
- Medicare and Medigap
- Long-Term Care Insurance
- Nursing Homes, Board and Care Homes, and Assisted Living Facilities
- Housing Alternatives & Options (including Reverse Mortgages)
- Alternatives to Guardianship (including Powers of Attorneys, Joint Accounts and Revocable Trusts)
- Social Security Benefits
- Supplemental Security Income
- Veterans' Benefits
- Pension Plans
- Age Discrimination in Employment
- Elder Abuse and Neglect
The authors describe their anticipated audience, including "lawyers and law students needing an overview of some particular subject, social workers, certain medical personnel, gerontologists, retirement planners and the like." Curiously, they don't mention potential clients, including family members of older persons. I suspect the book can and does assist prospective clients in thinking about when and why an "elder law specialist" would be an appropriate choice for consultation. This book is a very good starting place.
What's missing from the overview? Not a lot, although I find it interesting that despite solid coverage of the basics of Medicaid, and even though it is unrealistic to expect exhaustive coverage in a mini-book, the authors do not hint at the bread and butter of many elder law specialists, i.e., Medicaid Planning. Thus, there's little mention of some of the more cutting edge (and therefore potentially controversial) planning techniques used to create Medicaid eligibility for an individual's long-term care while also preserving assets that otherwise would have to be spent down.
Modern approaches, depending on the state, may range from the simple, such as permitted use of assets to purchase a better replacement auto, to more complex planning, as in states that permit purchase of spousal annuities or use of promissory notes, allow modest half-a-loaf gifting, or recognize spousal refusal. Even though the federal Deficit Reduction Act of 2005 succeeded in restricting assets transfers to non-spouse family members, families, especially if there is a community spouse, may still have viable options. Without appropriate planning the community spouse, particularly a younger spouse, may be in a tough spot if forced to spend down to the "maximum" permitted to be retained, currently less than $120,000 (in, for example, Pennsylvania). See, for example, a thoughtful discussion of planning options, written by Elder Law practitioners Julian Gray and Frank Petrich.
Perhaps the Nutshell omission is a reflection of the unease some who teach Elder Law may feel about the public impact of private Medicaid planning?
May 14, 2014 in Advance Directives/End-of-Life, Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, Social Security | Permalink | Comments (0) | TrackBack (0)
Thursday, May 8, 2014
The National Senior Citizens Law Center (NSCLC), drawing upon the nonprofit firm's experience in successful advocacy about access to benefits, is sharing its recommendations on how to help individuals obtain Medicaid funding for Home and Community Based Services (HCBS). The guide is titled "Just Like Home: An Advocate's Guide to Consumer Rights in Home and Communit Based Services." The authors, Eric Carlson, Hannah Weinberger-Divack and Fay Gordon, explain:
"New federal Medicaid rules, for the first time, set standards to ensure that Medicaid-funded HCBS are provided in settings that are non-institutional in nature. These standards, which took effect in March 2014, apply to residential settings such as houses, apartments, and residential care facilities like assisted living facilities. The standards also apply to non-residential settings such as adult day care programs.
This guide provides consumers, advocates and other stakeholders with information regarding multiple facets of the new standards, including consumer rights in HCBS, and the guidelines for determining which settings are disqualified from HCBS reimbursement. This guide is based on the federal rules and subsequently issued guidance, and will be updated as further information becomes available."
The twenty-page guide is free and downloadable -- more reasons to appreciate the hard-working folks at NSCLC. The NSCLC lawyers remind us that implimentation of HCBS is far from uniform from state to state. Knowing what is happening outside your own state will increase the odds of successfullly advocating for change, and securing threshold, quality care in your state.
Friday, May 2, 2014
Congressmen Earl Blumenauer (OR-03) and Chris Smith (NJ-04) introduced HR 4543, the PACE Pilot Act, a bipartisan and budget neutral bill that would allow The Program of All-Inclusive Care for the Elderly (PACE) programs greater flexibilities to expand their successful model to care for people under age 55 who have special health risks.
PACE integrates Medicare and Medicaid benefits for members of our society who have some of the most serious and costly health care problems. The program seeks to keep people living in the community rather than in long-term care institutions. Currently, PACE is only available to individuals age 55 or older and who are certified by their state as being eligible for a nursing home level of care. Expansion of these programs will offer younger individuals with disabilities this same integrated, community-based option that supports their independence and quality of life.
“PACE has been a huge success,” said Blumenauer. “What we have realized is that there is a group of people out there who currently don’t qualify for PACE because of the age requirement, but would otherwise greatly benefit from the program due to serious medical conditions. This bill allows us to see how we can bring them into the fold efficiently and affordably.”
“PACE continues to provide patient centric care to many of the frailest members in our society, while enabling them to live in their homes and stay in their communities,” said Smith. “We know that all PACE participants are eligible for nursing home care, yet 90 percent continue to live at home. By removing the nursing home level of care requirement, we can help ensure that people have greater access to preventative services and treatments, thereby helping them maintain their quality of life.”
Currently, a total of 103 PACE sites in 31 states serve about 56,000 enrollees nationwide. A number of research studies show that beneficiaries enrolled in PACE had fewer hospitalizations and nursing home admissions, and lower mortality than similar beneficiaries who were not enrolled in PACE.
Monday, April 28, 2014
National Senior Citizens Law Center's Executive Director Kevin Prindiville analyzes Paul Ryan's Congressional budget numbers for the Huffington Post, highlighting the effect of proposed deep cuts on federal aid programs, cuts that would dramatically impact the nation's poorest seniors. Kevin writes:
"The U.S. House of Representatives' recent approval of the Ryan budget resolution threatens programs that help poor seniors. In a disappointing vote, 219 House members gave their blessing to a budget that leaves country's older adults to struggle with less food, income, housing and care. The Ryan budget's path to poverty must not be allowed to happen. . . . By cutting essential programs that often make life manageable for those with limited means or resources, the Ryan budget will lead to poverty numbers among seniors the nation hasn't seen since the Depression."
Kevin then outlines specific terms of the House plan to cut $5 billion from SSI, $732 billion from Medicaid, as well as additional cuts to Meals on Wheels and food benefit programs.
The NSCLC, a nonprofit law firm with offices on both sides of the country, is a watchdog for the nation's low income elderly, succeeding with tough-to-win cases where the nation's most at-risk seniors are adversely affected by often-hidden changes or procedural traps in Social Security, Medicare and Medicaid programs. Additional information on NCSLC's advocacy is available on their website, along with a calendar of events including the April 29 free webinar on "Understanding and Impacting Implementation of New Medicaid Home and Community-Based Services Rules."
Tuesday, April 22, 2014
In some instances where a resident of a nursing home fails to qualify for Medicaid, the question may involve a transfer of a nonexempt asset by the resident or by someone (usually a family member) acting in place of the resident. If the nursing home is not then paid privately, a debt is incurred. Depending on the specific reasons for a ruling of ineligibility, the nursing home, as an unpaid creditor, may be motivated to challenge the transfer as "fraudulent." This in turn may trigger application of the Uniform Fraudulent Transfer Act (UFTA), as adopted in the specific state.
Along that line, there is a new article, "Reconsidering the Uniformity of Uniform Fraudulent Transfer Act," by Steven Boyajian, Esq., published this month in the American Bankruptcy Institute Journal. The article outlines proposed amendments to the UFTA currently under consideration:
"The UFTA has been adopted in 43 states, Washington D.C., and the U.S. Virgin Islands, and has not been specifically amended in the 30 years since it was drafted. Despite the UFTA's admonition that it 'shall be applied and construed to ... make uniform the law with respect to subject of [the UFTA] among states enacting it,' portions of the UFTA have been subject to conflicting interpretations by courts nationwide....
Amendments being considered by the Drafting Committee proposed to resolve the conflicting judicial interpretations of the following issues: (1) the effect of § 2's presumption of insolvency if a debtor was generally not paying its debts as they become due; (2) the standard of pleading and proof applicable to a claim that a transfer was made or obligation incurred 'with actual intent to hinder, delay, or defraud any creditor'; and (3) the allocation of burdens with respect to the elements of a claim to avoid a constructively fraudulent transfer or obligation."
In outlining the proposals, the author emphasizes the continuing nature of the discussions about UFTA proposals. One of the cases cited as part of the discussion is a nursing home collection case, Prairie Lakes Health Care System v. Wookey, 583 N.W. 2d 405 (S.D. 1998).
Pennsylvania also has a case involving intepretation of a UFTA claim in the context of a nursing home collection matter. In Presbyterian Medical Center v. Budd, 832 A.3d 1066 (Pa. Super. Ct. 2003), a nursing home plaintiff turned to Pennsylvania's filial support law as an alternative to a claim under UFTA, thereby permitting potential recovery against an adult child, without proof of fraud required.