Friday, July 21, 2017
In the latest chapter of an ongoing dispute between a specialized care facility, Melmark, Inc., and the older parents of a disabled adult son, Pennsylvania's intermediate Superior Court of Appeals has ruled in favor of the parents.
The July 19, 2017 appellate decision in Melmark v. Schutt is based on choice of law principles, analyzing whether New Jersey's more limited filial support law or Pennsylvania's broader filial law controlled. If applied, New Jersey law "would shield the [parents] from financial responsibility for [their son's] care because they are over age 55 and Alex is no longer a minor." By contrast, "Pennsylvania's filial support law...would provide no age-based exception to parental responsibility to pay for care rendered to an indigent adult child."
The parents and the son were all, as stipulated to the court, residents of New Jersey. New Jersey public funding paid from the son's specialized care needs at Melmark's Pennsylvania facility for some 11 years. However, when, as part of a "bring our children home" program, New Jersey cut the funding for cross-border placements, the parents, age 70 and 71 year old, opposed return of their 31-year old son, arguing lack of an appropriate placement. Eventually Melmark returned their son to New Jersey against the parents' wishes, with an outstanding bill for unpaid care totaling more than $205,000, incurred over his final 14 months at Melmark.
Both the Pennsylvania trial and appellate courts ruled against the facility, concluding that "the New Jersey statutory scheme reflects a legislative purpose to protect its elderly parents from financial liability associated with the provision of care for their public assistance-eligible indigent children under the present circumstances." The courts rejected application of Pennsylvania's law as controlling.
This is a tough case, with hard-line positions on the law staked out by both sides. One cannot expect facilities to provide quality care for free. On the other side, one can empathize with families who face limited local care choices and huge costs.
Ultimately, I anticipate these kinds of cross-border "family care and cost" disputes becoming more common in the future for care-dependent family members, as the impact of federal funding cuts trickle down to states with uneven resources of their own. Some of these problems won't see the courtroom, as facilities will likely resist any out-of-state placement where payment is not guaranteed by family members, old or young.
July 21, 2017 in Consumer Information, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Housing, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, July 20, 2017
In early July, the Governor of Hawai'i signed into law the Kupuna Caregivers Act, According to a story about the law, Hawaii Passes Law to Ease Responsibility of Elder Care, the law "provides qualified caregivers with a voucher of up to $70 per day that can be used toward services that they would otherwise perform themselves, including adult day care and assisted transportation." The first law of its type in the U.S. rather than benefitting the recipient of care, the law benefits the caregivers: by paying "working family caregivers, who can be caring for family members who are above the Medicaid eligibility threshold. While the amount provided does not cover the entire cost of care families need, it does allow them to provide more hours of in-home care and other services...." The text of the law is available here.
Wednesday, July 19, 2017
Governing ran a recent story about how states will pay for in-home care for their residents who are elders. As Demand for At-Home Care Grows, States Debate How to Pay for It considers that aging Boomers may not want to reside in nursing homes and if they stay at home, they will need care at home. With a likely greater demand for inhome care, how will it be delivered and who will pay?
[F]iguring out how to pay for more home-based care is mostly left up to the states. Medicaid is the primary payer for home- and community-based care, although states can decide whether or not they’ll offer the coverage. All 50 states and the District of Columbia do have home- and community-based programs of some type, but most states have waiting lists for their programs. Meanwhile, 59 percent of Medicaid funding goes to nursing homes, where about half of those in long-term care receive their services. “Nursing home institutions are a powerful player in the health-care setting, so there’s long been political pressure to not pay for more home health care,” says [Kevin] Prindiville [, executive director of Justice in Aging].
The article highlights California and Washington state, at opposite ends of the spectrum in handling this issue. Waivers may help, or shifting money through legislation that gives flexibility.
Tuesday, July 18, 2017
I read this article last week in the New York Times (also published by the Kaiser Health News), the topic of which is something we should consider seriously. Poor Patient Care at Many Nursing Homes Despite Stricter Oversight discusses Medicare's Special Focus status.
While special focus status is one of the federal government’s strictest forms of oversight, nursing homes that were forced to undergo such scrutiny often slide back into providing dangerous care, according to an analysis of federal health inspection data. Of 528 nursing homes that graduated from special focus status before 2014 and are still operating, slightly more than half — 52 percent — have since harmed patients or put patients in serious jeopardy within the past three years.
The article highlights some individuals' experiences, with the basis of the article concerning the Special Focus program.
Special focus facility status is reserved for the poorest-performing facilities out of more than 15,000 skilled nursing homes. The Centers for Medicare and Medicaid Services, or C.M.S., assign each state a set number of slots, roughly based on the number of nursing homes. Then state health regulators pick which nursing homes to include.
More than 900 facilities have been placed on the watch list since 2005. But the number of nursing homes under special focus at any given time has dropped by nearly half since 2012, because of federal budget cuts. This year, the $2.6 million budget allows only 88 nursing homes to receive the designation, though regulators identified 435 as warranting scrutiny.
The article also discusses lapses by those facilities once on the watch list, how a facility earns its way off the watch list and how long it typically takes to do so and the staffing ratios in such facilities.
Background information about the special focus initiative can be found on the CMS website. You can find the list of special focus facilities on CMS website. For example, here is the one published in June of 2017.
Friday, July 14, 2017
Justice in Aging has released a new issue brief for July about Medicare Savings Programs (MSP). Proposed Cuts to Medicaid Put Medicare Savings Programs At Risk explains the importance of the MSP for many Medicare beneficiaries, including paying their premiums. If the MSP program were cut or eliminated, many beneficiaries may no longer be able to afford Medicare.
Many low-income older adults are only able to participate in Medicare because Medicare Savings Programs help with their Medicare premiums, deductibles and co-pays. These critically important programs reach over 7 million people with Medicare, including 1.7 million older adults who are too poor to be able to afford Medicare but do not qualify for other Medicaid programs.1 With $772 billion in Medicaid cuts, the Better Care Reconciliation Act now being considered in the Senate could knock many older adults and people with disabilities off these programs, making Medicare unaffordable. As a result, those with the greatest needs will lose access to Medicare benefits because they will be unable to shoulder Medicare costs.
The brief explains QMBs, SLMBs, and QIs. It also explains the relationship between MSP and "Extra Help". Regardless of the Senate vote (maybe this week) on repeal and replace, the information in the brief about MSP and the other programs is really helpful. Check it out!
Sunday, July 9, 2017
Medicaid has been in the news frequently of late, as Congress debates the repeal of the Affordable Care Act. Kaiser Family Foundation released a new infographic on the relationship of Medicaid and veterans. Medicaid’s Role in Covering Veterans explains how Medicaid works as a safety net for veterans, helps with coverage for vets with complex medical issues, and provides federal matching funds (which may be affected by the repeal of the ACA). The infographic provides demographic data, lists the conditions of veterans (by percentages) on Medicaid and explains what would happen if Medicaid funding were reduced.
Thursday, June 29, 2017
The National Council on Aging (NCOA) posted a story on its blog explaining per capita caps and the impact on elders. Straight Talk for Seniors®: How Medicaid Caps Would Impact Seniors explains how Medicaid per capita caps would work.
Medicaid is funded jointly by the federal government and the states. Today, the federal government gives states matching funds to cover a percentage of their actual Medicaid costs. This keeps Medicaid affordable for states.
Under per capita caps, the federal government would limit, or cap, its contribution to the states based on a preset formula. This means states would be left paying the true cost of care for people in need. Many predict that states would face severe funding gaps and have to cut back on services to make up the difference.
If this is implemented, 5 states in particular would be hit hard as far as home and community based services funding, including my state of Florida. Those 5 states, besides Florida, are Alaska, Arizona, Georgia, and Nevada. The impact can be severe, as the article notes:
Medicaid per capita caps would hurt seniors in all states, but some states would fare worse than others. Here’s why.
First, the caps would be set based on each state’s 2016 Medicaid costs. This means states that were efficient and kept their costs low that year will be locked into a lower federal contribution. North Carolina, California, Nevada, Georgia, and Florida are examples of states that fall into this category.
Second, the caps would not adjust for an aging population. This means states whose 65+ population is growing faster than the national average will be locked into a smaller federal contribution that will not keep pace with growing costs. In fact, the caps would begin when baby boomers start turning 80. People aged 85+ are more likely to need long-term services and supports, and the cost of their care is 2.5 times more than people aged 65-74.
Monday, June 26, 2017
This week is a big one for the Senate as they consider the Republican version of a health care bill to "repeal" the Affordable Care Act. Now I confess that I've only skimmed portions of it, and I suspect that there will be some "deal making" going on to amend the proposal in an attempt to gather the necessary votes for it to pass. I don't intend this to be a political post, although the title probably makes you think I do. But depending on what happens, couldn't a crisis be looming as a result, at least for those individuals in nursing facilities whose stays are covered by Medicaid? Whether per capita caps or block grants, the potential remains that there may be less money to cover long term stays in nursing homes, right?
What got me thinking about this post was an article in the New York Times on June 24, 2017. Medicaid Cuts May Force Retirees Out of Nursing Homes asks the question, what happens if Medicaid cuts are enough to affect coverage for long term nursing home care? "Under federal law, state Medicaid programs are required to cover nursing home care. But state officials decide how much to pay facilities, and states under budgetary pressure could decrease the amount they are willing to pay or restrict eligibility for coverage." One expert interviewed for the story suggested that even if the ACA isn't repealed, Medicaid is still an attractive target for cuts and don't forget that long term nursing home care makes up a significant amount of Medicaid spending, "long-term services such as nursing homes account for 42 percent of all Medicaid spending — even though only 6 percent of Medicaid enrollees use them." The article considers the possibilities of cuts and the impact both on the facilities and the residents.
Justice in Aging released a blog post, issue brief and fact sheet focusing on the impact the Senate version of the bill will have on elders. The Fact Sheet, discussing Caps lists 5 downsides to the states and 3 ways elders will be harmed. Since the Times article was focused on nursing facility coverage, here's what the Justice in Aging Fact Sheet says about that: "Losing Coverage for Nursing Home Care. 62% of nursing home residents rely on Medicaid. For the vast majority of these 850, 000 nursing home residents, Medicaid coverage is provided through an eligibility category that is "optional" under federal Medicaid law. As states face insufficient funding, they will look for optional categories to cut, putting nursing home residents at particular risk." Both the Issue Brief and the Fact Sheet fail to take into account the aging of America by tethering the cap to "baseline years". As the Brief notes
[T]he fourth problem is that the Senate bill’s per capita cap fails to recognize how increasing age corresponds to a greater need for health care. In 2011, for example, persons aged 85 and over incurred average Medicaid costs that were 2.5 times higher than the average costs incurred by beneficiaries aged 65 to 74.35
Assume that a state currently has a large percentage of Medicaid beneficiaries in their early 70s. The base rate for that state will be weighted heavily towards the average health care needs of persons in their 70s, and that weighing will affect the cap amounts imposed in 2027, when the large group of beneficiaries will be in their early 80s — with different and more extensive needs for health care. Notably, such a shift in population from the young-old to the old-old is more likely than not, given the overall aging of America’s population. From 2025 and 2035, approximately two-thirds of the states will experience a rise in the share of seniors who are 85 and older. In most cases, the increase will be at least 25%. (citations omitted).
If these folks in nursing homes need a level of care that can't be provided by their families (if they even have families) and Medicaid is cut, what's the answer? Right now, all we can do is wait and see what happens with the Senate this week. Right now, the vote is projected to take place on Thursday.
Tuesday, June 20, 2017
Consider those who need home health care but say no. Kaiser Health News recently ran a story on this very topic. Some Seniors Just Want To Be Left Alone, Which Can Lead To Problems explain that the percentage of those who want to be left alone is higher than you may think. "As many as 28 percent of patients offered home health care when they’re being discharged from a hospital — mostly older adults — say “no” to those services, according to a new report." The report is from a roundtable that was sponsored by the Alliance for Home Health Quality & Innovation and United Hospital Fund. The report, I Can Take Care of Myself: Patients' Refusals of Home Health Care Services runs 23 pages.
Here are highlights of the report (found on page 1):
Medical care is moving from hospitals and other institutions into the community, which for most people means care at home, where they want to be. With shorter hospital stays and more complex post-discharge needs, the importance of home health care services, including skilled care and personal care, in discharge planning and transitional care is increasing.
Some studies show that patients who receive home health care after hospital discharge are less likely to be readmitted. Other studies show that patients who receive home health care report better quality of life.
Although data are limited, approximately 6-28 percent of patients eligible for home health care refuse these services, for a variety of reasons.
Even less is known about the process by which hospital staff identify patients for referral to home health care, how they explain these services, and how well they address the full range of patients’ and family caregivers’ transitional care needs.
Patients and their family caregivers have similar goals but may have different needs and attitudes about home health care.
Policy and system barriers to accessing services include inflexible criteria for eligibility, inadequate payment for home health care agencies’ services for patients with complex conditions, and shortages of trained workforce.
Recommendations from Roundtable participants include interventions that improve communication about care challenges and home health care services, qualitative and quantitative research on all aspects of home health care refusals, policy changes to increase access and coordination, and continuity across providers and care settings.
Tuesday, May 23, 2017
As I reported here for the first time recently, Pennsylvania's Governor Wolf has proposed consolidation -- or as he prefers to call it -- unification -- of four separate administrative agencies, the Departments of Aging, Health, Human Services (formerly Public Welfare) and Drug & Alcohol Treatment Programs. Are similar budget-driven changes occurring in your state?
As I catch up with events in Pennsylvania, I'm learning from readers about growing concerns about the possible merger.
- As one recently retired PA legislator pointed out, there seems to be little in the way of a written plan for how services will be handled under this merger. Rather, the merger appears mostly as a description of budget items, with a lot of "minus" signs to indicate cuts. Perhaps by design, Pennsylvania government is often a bad example of transparency for governments. What is the real plan, if any?
- With the consolidation, at a minimum, older Pennsylvanians would be losing a cabinet level post, their singular, dedicated spokesperson. This would be likely to affect all future budget and programming battles.
- The timing is, to use a favorite Trump adjective, "sad." While the leading edge of the big wave of aging baby boomers began to be felt a few years ago when those born in in 1945 started turning age 65 in 2010, the "real" need for an effective advocate is when boomers start turning age 75, age 80 and so on, the higher ages when they are more likely to need or question access to services.
Perhaps of greatest significance is the potential impact of consolidation on the process for assessment of need for services and assistance, especially Medical Assistance.
Under the current allocation of resources, "assessment" of need is handled by individuals employed under the authority of Pennsylvania's Department of Aging.
However, the financial allocations are currently determined under the authority of the Department of Human Services. Consolidation might make sense on paper, but wait!
As one of my mentors in aging, Northern Ireland's former Commissioner of Older People Claire Keatinge, says, to be helpful, fair and effective, any individual assessment of need for health care, social care and security, should be exactly that -- individualized and focused on the client, and should not be simply a match to "what services (if any) are available." That process-based distinction is critical to determining current and future funding priorities.
In Pennsylvania, the lion's share of budget and personnel for aging services has long been housed in the Department of Human Services (formerly Public Welfare), but those workers -- perhaps by necessity and perhaps by design, have often functioned as dedicated bean counters, as in "here's what services we fund, so do you or don't you meet the eligibility criteria?"
By losing the aging assessment focus of the current Department of Aging, it seems likely the state would compromise, and perhaps lose entirely, the independent thinking and opportunity for critical needs-based assessment.
Several elder-focused organizations have raised these and other key points in opposition to the existing budget-based consolidation proposal. Those active in the debate include:
- The Pennsylvania chapter of the National Association of Elder Law Attorneys (PAELA) has asked thoughtful legislators to "oppose such consolidation" as presented in the current budget proposal. As Pittsburgh Elder Law attorney Julian Gray testified on May 1 in state Senate hearings, a "bigger" agency is not necessarily a "better" agency.
- Representatives for the service organization for Pennsylvania senior service workers, P4A, testified strongly in favor of the role of the Department of Aging as the advocate for the "unique needs of seniors." Speakers focused too on the Department's historical role in protecting and managing a unique funding stream dedicated to seniors, "lottery" funds.
- Long-time practitioner and elder law guru, Jeff Marshall, has a comprehensive commentary, with links, detailing the history and importance of Pennsylvania's Department of Aging. There's a simple bottom line expressed here -- "if it ain't broke, don't fix it."
- Related articles
Monday, May 8, 2017
Justice in Aging, the Center for Medicare Advocacy and the National Consumer Voice for Quality Long-Term Care have issued another in the series of issue briefs about the revised nursing home regulations. Return to Facility After Hospitalization covers several important topics including notice, bed holds, right to return and appeal rights. Here is the executive summary:
Bed hold rights are set by state law. Federal law complements state law by requiring facilities to notify residents of those rights. Notice of bed hold rights must be provided at two separate times: in advance of a hospitalization, and at the time of transfer to a hospital. The advance notification must include the resident’s right to a bed hold, whether the state’s Medicaid program pays for a bed hold, and the facility’s bed hold policies (which must be consistent with state and federal law). The time-of-transfer notification must describe the resident’s bed hold rights under the facility’s policy.
Federal law also establishes a resident’s right to return to the facility even if a bed hold period has been exceeded, or if the resident did not have a bed hold. The resident can return to her previous room if available, or to the next available room if the previous room is not available. The regulations specify that the resident can request a transfer/discharge hearing if the facility refuses to accept her back.
Wednesday, May 3, 2017
Justice in Aging announced the release of two additional issue briefs concerning the revised nursing home regs. One brief concerns quality of care and the other, grievances and resident/family councils.
The executive summary for the quality of care issue brief explains
The substantive requirements for quality of care are retained in the revised regulations, and the Centers for Medicare & Medicaid Services (CMS) affirms the regulations’ overriding goals: supporting person-centered care and enabling each resident to attain or maintain his or her highest level of well-being. Finding all of the requirements presents a challenge, however. CMS has significantly reorganized the quality of care provisions, moving some provisions to other regulatory sections, expanding the standards of the prior regulations, and adding several entirely new requirements.
The executive summary for the grievances and resident/family councils issue brief explains:
Residents have the right to file grievances and the facility must work to resolve those concerns promptly. A grievance official at the facility is responsible for complaint handling. Each facility must have a grievance policy and provide residents with information about how to file a grievance, how to contact the grievance official, a time frame for complaint review, a written decision, and information about other entities with which grievances can be filed. Written decisions must include, but are not limited to, the steps the facility took to investigate the complaint, the findings, whether the complaint was confirmed or not, and the action the facility has taken or will take to correct the problem.
The resident has a right to: form and participate in a resident council; have family member(s) or other resident representative(s) meet in the facility with the families or resident representative(s) of other residents; and participate in the family council. There must be a staff person assigned to assist both resident and family councils and the council, along with the facility, must approve this person. The councils must be given a private space in which to meet and no one outside of a resident or family member can attend without invitation. The facility must act upon council concerns and recommendations and provide a reason for its decision, although it does not have to implement all that the councils request.
All of the issue briefs are available here.
Monday, May 1, 2017
Late last week I learned that CMS may be reversing course on prohibiting pre-dispute arbitration clauses in nursing home admission contracts. I couldn't decide if my response should be "say it isn't so" or "you have got to be kidding me". Nevertheless, Justice in Aging reported in their weekly newsletter, This Week in Health Care Defense that:
CMS Backtracks on Nursing Home Arbitration Prohibition
As part of last year’s revision of nursing facility regulations, CMS prohibited federally-certified nursing facilities from obtaining arbitration agreements at the time of admission. CMS concluded that it was unfair to have residents and families waive legal rights during such a difficult and chaotic time. Now, however, CMS has reversed course and has filed language that would revise the regulation to allow facilities to obtain arbitration agreements at admission. For more on the revised regulations, see the series of issue briefs developed by Justice in Aging in partnership with the Center for Medicare Advocacy and the National Consumer Voice for Quality Long Term Care.
Wednesday, April 26, 2017
Justice in Aging has announced a free webinar for May 17th, 2017 from 2-3 edt on Elder Financial Abuse & Medicaid Denials. Here is a description of the webinar
Financial exploitation can devastate low-income older adults, especially those who rely on Medicaid for their health and long-term care. For example, older adults who are victims of financial abuse may be denied eligibility for Medicaid because their abuser won’t turn over their bank records. Without Medicaid eligibility, the older adult may be threatened with eviction or involuntary discharge from a nursing home because of nonpayment. Legal services are critical to helping older victims of financial exploitation receive the medical care and services to which they are entitled. Join us for Elder Financial Abuse and Medicaid Denials to learn how to identify victims of elder financial abuse, what problems this exploitation can cause for Medicaid eligibility, and how legal services attorneys can help their older clients receive the benefits they need and prevent future problems accessing Medicaid.
To register for the webinar,https://attendee.gotowebinar.com/register/5875005469626032643?source=SALSA. Did I mention, it's free!
April 26, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Programs/CLEs, Webinars | Permalink | Comments (0)
Thursday, April 13, 2017
Registration is now open for Stetson's annual Fundamentals of SNT Administration webinar. This half-day webinar is scheduled for May 5, 2017 from 1-5 p.m. The 4 speakers will cover topics on how to become a SNT administrator, Tax issues when making distributions, services and products a SNT administrator can provide, and an update on the laws, regs and POMS. The agenda is available here and registration is available here. (you can register online and fill out and submit a pdf).
Full disclosure, I'm the conference chair. Hope to see you virtually at this webinar!
Tuesday, March 21, 2017
It's not final, it's not been passed, and changes are likely, but the current health care bill, known as the American Health Care Act, has a significant impact on elders. Last week's CBO report engendered a lot of discussion about the impact of this new health care proposal. The New York Times ran an article last week discussing it, No Magic in How G.O.P. Plan Lowers Premiums: It Pushes Out Older People. The article explains that lower premiums are on the way for some under this proposal. But, the way the lower premiums are achieved? "[T]he way the bill achieves those lower average premiums has little to do with increased choice and competition. It depends, rather, on penalizing older patients and rewarding younger ones. According to the C.B.O. report, the bill would make health insurance so unaffordable for many older Americans that they would simply leave the market and join the ranks of the uninsured."
We know that insurers want to have a broad pool to spread the risk. Typically, "older customers cost substantially more to cover than younger ones because they have more health needs and use their insurance more. By discouraging older people from buying insurance, the plan will lower the average sticker price of care." Ready for some sticker shock? Under the proposal, according to the story, the plan "increases the amount that insurers can charge older customers, and it awards flat subsidies by age, up to an income of $75,000. ... On premiums alone, prices would rise by more than 20 percent for the oldest group of customers. By 2026, the budget office projected, 'premiums in the nongroup market would be 20 percent to 25 percent lower for a 21-year-old and 8 percent to 10 percent lower for a 40-year-old — but 20 percent to 25 percent higher for a 64-year-old.'"
The story explains that it's not just the premiums that give the whole picture. Tax credits factor into this as well. Here is where the real sticker shock comes in. "[T]he change in tax credits matters more. The combined difference in how much extra the older customer would have to pay for health insurance is enormous. The C.B.O. estimates that the price an average 64-year-old earning $26,500 would need to pay after using a subsidy would increase from $1,700 under Obamacare to $14,600 under the Republican plan." Did you see that-an increase from $1,700 to $14,600...
The semester is quickly drawing to a close, but the bill could be a basis for an interesting class discussion on social policy, if you have time.
Monday, March 20, 2017
Wonder what is in the new health care bill? New Health Plan Broken Down appears in the Centre Daily Times on March 12, 2017. The article is written by Amos Goodall, a prominent elder law attorney (and graduate of Stetson's LL.M. in Elder Law). The article explains changes to the individual mandate (penalty repealed and replaced), preexisting conditions protection (none), age-based premiums (5:1 ratio & will be up to states which ration), cost-sharing subsidies (will be eliminated), over the counter drugs (adding reimbursement from HSA, FSA or Archer MSA), Medicaid expansion (changes financing) and per capita caps.
To read more about these and other proposed changes, click here.
Thanks to Amos for sending me the link to the story.
Thursday, March 16, 2017
Today is Call Congress About Medicaid day. Here is the information from the Medicare Rights Center:
Tell Congress to protect our care by joining today’s national call-in day. Urge your representative to vote “no” on the American Health Care Act... Call 866-426-2631 to contact your member of Congress.
The message is to vote no for changes to Medicaid and Medicare. The Medicare Rights Center also offers a one page issue brief on the proposed changes to Medicare, available here.
Regardless of your views, it is always important to make your voice heard.
Thanks to Kim Dayton, the elderlawprof blog founder, for sending me a note on this.
Monday, February 20, 2017
George Washington Law Professor Naomi Cahn recommended an interesting new article from the Elder Law Journal, "The Precarious Status of Domestic Partnerships for the Elderly in a Post-Obergefell World."
Authors Heidi Brady, who is clerking for the Fifth Circuit Court of Appeals, and Professor Robin Fretwell Wilson from the University of Illinois College of Law, team to analyze key ways in which elderly couples in domestic partnerships may be treated differently, and sometimes more adversely, than same sex couples who are married. From the abstract:
Three states face a particularly thorny question post-Obergefell [v. Hodges, the Supreme Court's 2015 decision recognizing rights to marry]: what should be done with domestic partnerships made available to elderly same-sex and straight couples at a time when same-sex couples could not marry. This article examines why California, New Jersey, and Washington opened domestic partnerships to elderly couples. . . . This Article drills down on three specific obligations and benefits tied to marriage -- receipt of alimony, Social Security spousal benefits, and duties to support a partner who needs long-term care under the Medicaid program -- and shows that entering a domestic partnership rather than marrying does not benefit all elderly couples; rather, the value of avoiding marriage varies by wealth and benefit.
Thank you, Naomi, for this recommendation.
February 20, 2017 in Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, February 8, 2017
Justice in Aging has released two new issue briefs concerning the new nursing home regs. One is on involuntary transfers and discharges and is available here. The other is on unnecessary medications and antipsychotic meds, and is available here. The briefs were done with the Center for Medicare Advocacy and the National Consumer Voice for Quality Long-Term Care.
Here's the executives summary for the transfer/discharge brief
The involuntary transfer/discharge regulations have changed, but not dramatically. Facilities still can force a transfer/discharge only under one of six specified circumstances, and a resident continues to have the right to contest a proposed transfer/discharge in an administrative hearing. The revised regulations narrow the facility’s ability to base a transfer/discharge on a supposed inability to meet the resident’s needs, by requiring increased documentation by the resident’s physician. The regulations also limit transfer/discharge for nonpayment, by stating that nonpayment has not occurred as long as Medicaid or another third-party payor is considering a claim for the time period in question. All transfer/discharge notices must be sent to the resident, resident representative(s), and (in a new requirement) the Long-Term Care Ombudsman program. The revised regulations now explicitly state that a facility cannot discharge a resident while an appeal is pending.
Here's the executive summary for the medications brief:
Regulations about unnecessary drugs and antipsychotic drugs have been moved from the quality of care section to the pharmacy services section. Some provisions have been moved but not otherwise changed: these include protection from unnecessary medications, requirements for gradual dose reductions, and the use of behavioral interventions in order to discontinue drugs, "unless clinically contraindicated." In addition, the pharmacy services regulation includes a new discussion of a broader category of psychotropic drugs, along with new controls over "as needed" (PRN) psychotropic drugs. The revised regulations also expand requirements for drug regimen reviews.
These and the first brief in the series are available here.