Monday, February 20, 2017

How Do "Domestic Partnerships" Fare for Elderly Couples?

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

New Issue Briefs from Justice in Aging

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.

February 8, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Sunday, January 29, 2017

Tuesday and Wednesday: Call Your Senator and Representative on Aging Issues

There is a lot of buzz about changes to programs that impact elders and none of us knows what the end results will be. The Leadership Council on Aging Organizations has designated Tuesday (January 31) and Wednesday (February 1) as call your Senators and Representatives days. Here is the information from the American Society on Aging:

The Leadership Council of Aging Organizations (LCAO), of which ASA is a member, is organizing call-in days next Tuesday and Wednesday, January 31 and February 1. This is an opportunity for you to contact your Senators and Representatives to let them know of your concerns about preserving these major programs. To participate, dial 866-426-2631. You’ll hear a brief overview of the issues, and then be asked to enter your zip code to be connected with your legislators.

ASA offers some tips on talking points, available here.  

January 29, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Medicaid, Medicare | Permalink | Comments (0)

Tuesday, January 24, 2017

Medicaid and the Middle Class

The Long Term Care Community Coalition recently released a publication, Medicaid: A Lifeline for Middle Class Families. This one page pdf document discusses 7 topics:

  • Financial Security For Middle Class Families.
  • Forty Percent Of People Who Reach Age 65 Will Need Nursing Home Care.
  • Peace Of Mind For Middle Class Families.
  • Millions Of Americans Are Providing Care And Support Today To An Older Adult.
  • Ensuring Skilled Dementia Care
  • Essential Protections For Frail Elderly And Their Families
  • Preserving Life In The Community.

January 24, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

New PBS Documentary on Alzheimer's to Air Nationally on Wednesday, January 25

A new one hour documentary, Alzheimer's: Every Minute Counts, is scheduled to begin airing nationally on PBS stations on Wednesday, January 25.  

In part, the documentary will focus on research funding issues.  Dr. Ruby Tanzi, a Harvard Medical School researcher who appears on the film, explained for NextAvenue's website:

We should be absolutely panicked at the government level. When the Medicare and Medicaid [treatment and care] bill for Alzheimer’s goes from one in five dollars to one in three dollars — that could happen over the next decade with baby boomers getting older — we could single-handedly collapse Medicare and Medicaid with Alzheimer’s disease.

 

Now, the government [research funding for Alzheimer's] has gone up to about a billion dollars. Which is great, it’s more money. It’s still not the billions of dollars that go to other age-related diseases. I’m glad that cancer and heart disease and AIDS get many billions of dollars, but Alzheimer’s has to get as much or more now given the epidemic and the urgency here with how many cases we’re going to have.

 

It’s going to crush us. Never mind the social burden on the families. I might add that two-thirds of patients are women. And most caregivers are women. What’s going to happen when so much of our female population is (struck) with this disease? So it’s a huge problem and if we don’t throw a ton of money at it now, it’ll be a disaster.

For more information on the documentary, including links to watch it on-line (free!), see PBS "Alzheimer's: Every Minute Counts." There is an important opportunity here for schools, including law schools, to host an airing of the documentary to promote discussion about strategies.  

January 24, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Film, Medicaid, Medicare, Science, Statistics | Permalink | Comments (0)

Tuesday, January 17, 2017

Mobile Palliative Care for Homeless

Kaiser Health News ran a story about a project that provides palliative care to individuals who are homeless and terminally ill. Mobile Team Offers Comfort Care To Homeless At Life’s End covers a pilot project in Seattle. "Since January 2014, the pilot project run by Seattle/King County Health Care for Homeless Network and UW Medicine’s Harborview Medical Center has served more than 100 seriously ill men and women in the Seattle area, tracking them down at shelters and drop-in clinics, in tents under bridges and parked cars." The project is funded through 2017 and is designed to avoid unneeded or unwanted care at the end of life while giving people who are homeless input in their care.  The care providers arrange for the clients to get medical treatment (through Medicaid or pro bono care), follow up with patients, help patients make decisions and care for them so they don't die alone.

The mobile program has some advantages over other existing programs, such as going to where the patients are located and  the providers are "more likely to engage the hardest-to-reach patients, those distrustful of medical care and outsiders...."  Although the medical treatment is important, so far, the team is finding that coordination of care is a huge benefit of the mobile program.  Mobile palliative care programs do exist worldwide, but aren't prevalent in the U.S. "Worldwide, there are only a few other mobile palliative care programs, all outside the U.S. The closest one in North America is the Palliative Education and Care for the Homeless program — known as PEACH — in Toronto."

January 17, 2017 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

UCLA Prof. Allison Hoffman on "Reimagining the Risk of Long-Term Care"

With the new Presidential administration ahead, many of us are asking what government policies or programs will be "re-imagined."  With changes on the horizon, an especially interesting perspective on long-term care is offered by UCLA Law Professor Allison Hoffman with her recent article, "Reimagining the Risk of Long-Term Care,"  published in the Yale Journal of Health Policy, Law & Ethics. From the abstract:

While attempting to mitigate care-recipient risk, in fact, the law has steadily expanded next-friend risk, by reinforcing a structure of long-term care that relies heavily on informal caregiving. Millions of informal caregivers face financial and nonmonetary harms that deeply threaten their own long-term security. These harms are disproportionately experienced by people who are already vulnerable--women, minorities, and the poor. Scholars and policymakers have catalogued and critiqued these costs but treat them as an unfortunate byproduct of an inevitable system of informal care.
 
 
This Article argues that if we, instead, understand becoming responsible for the care of another as a social risk--just as we see the chance that a person will need long-term care as a risk--it could fundamentally shift the way we approach long-term care policy.
 
Professor Hoffman examines various ways in which society expects third parties, including but not limited to family members as "next friends," to provide unpaid assistance and/or out-of-pocket dollars to disabled adults or seniors needing help.  She writes, for example, about filial support laws used sporadically to compel certain family members to finance care.  She observes that often, without direct personal experience, society members are unaware of the real costs of long-term care, both financially and emotionally, writing: 
 
As one informal caregiver and scholar described: “I feel abandoned by a health care system that commits resources and rewards to rescuing the injured and the ill but then consigns such patients and their families to the black hole of chronic ‘custodial’ care.” What next friends do for others is herculean, both in terms of the time spent and the ways that they offer assistance.
 
Recommended reading for the new year.  

January 17, 2017 in Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Social Security, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Friday, January 13, 2017

Should All States Permit Use of Medicaid for Assisted Living?

The plight of 108-year-old Ohio resident Carrie Rausch, facing the prospect of losing her spot in an assisted living community because she's run out of money, is generating a lot of attention in the media, including People magazine.  Some states, such as New Jersey, have expanded the options for public assistance in senior living -- beyond nursing homes -- to permit eligible individuals to use Medicaid for residential care.  Assisted living is usually much less expensive than a nursing home; but the pool of individuals who would might opt for assisted living rather than the "dreaded" nursing home is also larger.   Ohio, along with many states, hasn't gone the AL route:  

If Rausch can’t raise the money needed, she’ll have to leave what has been her home for the past three years and move into a nursing home that accepts Medicaid.

[Daughter] Hatfield worries about the toll the move would take on her mom, who is more lively and active than most people 10 or even 20 years her junior. . . . “We need a miracle,” she says.

Ms Rausch's adult daughter -- herself in her late 60s -- has turned to GoFundMe to attempt to raise the $40k needed for a year of continued residence, and as of the date of this Blog post, more than 700 donors have responded.  

At a deeper level, however, this story reveals important questions about public funding for long-term care on a state-by-state basis. This funding issue is repeating itself throughout the country for seniors much younger than the frugal and relatively healthy Carrie Rausch.  On a national basis, GoFundMe "miracles" seem an impractical solution.

January 13, 2017 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, January 10, 2017

Oregon Supreme Court Rejects Medicaid Estate Recovery for Asset Transfers between Spouses

In late December 2016, the Oregon Supreme Court ruled that state efforts to use Medicaid Estate Recovery regulations to reach assets transferred between spouses prior to application were improper. In Nay v. Department of Human Services, __ P.3d ___, 360 Or. 668, 2016 WL 7321752, (Dec. 15, 2016), the Supreme Court affirmed in part and vacated in part the ruling of the state's intermediate appellate court (discussed here in our Blog in 2014).  The high court concluded:

Because “estate” is defined to include any property interest that a Medicaid recipient held at the time of death, the department asserted that the Medicaid recipient had a property interest that would reach those transfers. In doing so, it relied on four sources: the presumption of common ownership in a marital dissolution, the right of a spouse to claim an elective share under probate law, the ability to avoid a transfer made without adequate consideration, and the ability to avoid a transfer made with intent to hinder or prevent estate recovery. In all instances, the rule amendments departed from the legal standards expressed or implied in those sources of law. Accordingly, the rule amendments exceeded the department's statutory authority under ORS 183.400(4)(b). The Court of Appeals correctly held the rule amendments to be invalid.

Our thanks to Elder Law Attorney Tim Nay for keeping us up to date on this case.  His firm's Blog further reports on the effects of the final ruling in Oregon:

"Estate recovery claims that were held pending the outcome of the Nay case can now be finalized, denying the claim to the extent it seeks recovery against assets that the Medicaid recipient did not have a legal ownership interest in at the time of death. Estate recovery claims that were settled during the pendency of Nay contained a provision that the settlement agreement was binding on all parties to the agreement no matter the outcome in Nay and thus cannot be revisited."

January 10, 2017 in Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, January 9, 2017

Diving Deeper into Approval of Short-Term Annuities in Medicaid Planning

3L Villanova Law Student Jennifer A. Ward has an interesting analysis of the Third Circuit's decision in Zahner v. Sec'y Pa Dept. of Human Servs., 802 F.3d 497 (3d Cir. 2015), published in a recent issue of the Villanova Law Review.  She begins with a summary of the Zahner decision and an outline of her analysis:

[T]he Third Circuit examined whether short-term annuities, a specific instrument used in Medicaid planning, qualified for the DRA's safe harbor provision. If so, assets used to purchase short-term annuities would be sheltered from factoring into individuals' eligibility for Medicaid. Holding that short-term annuities can qualify for protection, the Third Circuit's decision signifies that the DRA did not completely foreclose the “use of short-term annuities in Medicaid planning.”
 
This Casebrief argues that the Third Circuit's Zahner decision is a win for elder law attorneys and their clients, as it solidifies the viability of the use of short-term annuities in Medicaid planning. Part II examines how individuals take part in Medicaid planning, including a discussion of the DRA and the use of annuities in planning. Part III presents the facts of Zahner and reviews the Third Circuit's analysis. Part IV analyzes the Third Circuit's decision to approve the use of short-term annuities. Part V advises elder law practitioners on the use of short-term annuities going forward. Part VI concludes by discussing the long-term viability of short-term annuities.
 
The author recognizes the potential for Congress to change the outcome of the Zahner ruling: 
 
After Zahner, elder law practitioners are free to use short-term annuities while guiding their clients through the Medicaid planning process. The Third Circuit will not bar the use of qualified short-term annuities in Medicaid planning, instead leaving any change in policy to Congress. Therefore, until Congress acts, short-term annuities are a viable planning tool in the Third Circuit for the foreseeable future.For people who wish to leave assets to loved ones, Zahner presents good news. Rather than causing people to exhaust their savings on long-term care, Zahner provides individuals greater ability to protect resources through Medicaid planning.
 
The title of the article is Doctor's Orders: The Third Circuit Approves Short Term Annuities As a Viable Planning Tool, and is available through subscription on Westlaw and Lexis and appears to be forthcoming on a digital commons platform via the Villanova Law Review. 

January 9, 2017 in Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Thursday, January 5, 2017

Medicaid Pocket Primer

Kaiser Health News has released a Medicaid Pocket Primer. The Primer succinctly explains what is Medicaid, its structure, those covered, services, the impact of the ACA, how beneficiaries access care, the program's impact on beneficiaries' ability to get care, its costs, and financing.  The conclusion to the primer explains

Medicaid provides comprehensive coverage and financial protection for millions of Americans, most of whom are in working families. Despite their low income, Medicaid enrollees experience rates of access to care comparable to those among people with private coverage. In addition to acute health care, Medicaid covers costly long-term care for millions of seniors and people of all ages with disabilities, in both nursing homes and the community. Medicaid funding is a major source of support for hospitals and physicians, nursing homes, and jobs in the health care sector. Finally, the guarantee of federal matching funds on an open-ended basis permits Medicaid to operate as safety net when economic shifts and other dynamics cause coverage needs to grow. Because proposals to restructure the Medicaid program could have significant consequences for enrollees and the health care system, the potential implications of such proposals warrant careful consideration.

A pdf of the primer is available here.

January 5, 2017 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Monday, December 26, 2016

Oregon Estate Recovery Rules Held Invalid

Attorney Tim Nay ( NAELA's first president by the way), recently posted on listservs about the Oregon Supreme Court's opinion on the state Medicaid agency's rules regarding estate recovery.  The Oregon Supreme Court, in Nay v. Department of Human Services, affirmed the court of appeals decision that the administrative rules were invalid:

In 2008, the department amended its administrative rules regarding the scope of that recovery. The amended rules allow the department to recover the payments from assets that the recipient had  transferred to a spouse up to five years before a person applies for Medicaid. Pursuant to ORS 183.400, petitioner Tim Nay sought judicial review of those rule amendments in the Court of Appeals. The Court of Appeals agreed with petitioner that the amendments were invalid ... and the department sought review. As we will explain, we conclude that the rule amendments are invalid under ORS 183.400(4)(b) because they exceed the department’s statutory authority. Accordingly, we affirm the Court of Appeals. (citations omitted).

After reviewing state family law and probate law (elective share) and the arguments advanced by the Department of Human Services, the Oregon Supreme Court concluded

The department promulgated rule amendments that allow it to obtain estate recovery from transfers made to a spouse within the five years before a person applies for Medicaid. Our standard for judicial review is whether the department exceeded its statutory authority ..., and more specifically whether the rule amendments depart from a legal standard expressed or implied in the particular law being administered.... Because “estate” is defined to include any property interest that a Medicaid recipient held at the time of death, the department asserted that the Medicaid recipient had a property interest that would reach those transfers. In doing so, it relied on four sources: the presumption of common ownership in a marital dissolution, the right of a spouse to claim an elective share under probate law, the ability to avoid a transfer made without adequate consideration, and the ability to avoid a transfer made with intent to hinder or prevent estate recovery. In all instances, the rule amendments departed from the legal standards expressed or implied in those sources of law. Accordingly, the rule amendments exceeded the department’s statutory authority..... The Court of Appeals correctly held the rule amendments to be invalid. (citations omitted).

The opinion is available here.

Congrats Tim and thanks for letting us know!

December 26, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, December 19, 2016

FAQ on Wandering from CMS

Last week CMS issued an FAQ for Medicaid beneficiaries in the community who wander. FAQs concerning Medicaid Beneficiaries in Home and Community-Based Settings who Exhibit Unsafe Wandering or Exit-Seeking Behavior offers 4 FAQs. Each FAQ offers suggestions for providers. For example, FAQ 3 offers suggestions for staffing, "environmental design" and activities while FAQ 4 offers actions that the providers can take, such as "[e]nsuring that individuals have opportunities to visit with and go out with family members and friends, when they want this."  The 4 FAQs are:

  1.  How can residential and adult day settings comply with the HCBS settings requirements while serving Medicaid beneficiaries who may wander or exit-seek unsafely?

  2. Can provider-controlled settings with Memory Care Units with controlled-egress comply with the new Medicaid HCBS settings rule? If so, what are the requirements for such settings?

  3. What are some promising practices that HCBS settings use to serve people who are at risk of unsafe wandering or exit-seeking?

  4. How can residential and adult day settings promote community integration for people who are at risk of unsafe wandering or exit-seeking? What are some examples of promising practices for implementing the community integration requirements of the regulations defining home and community-based settings and simultaneously assuring the safety of individuals who exhibit these behaviors?

     

 

 

December 19, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Tuesday, December 13, 2016

GAO: Nursing Home Compare Website Needs Improvement

The GAO recently issued a report on the nursing home compare website.

Here are the highlights:

 GAO found that the Centers for Medicare & Medicaid Services (CMS) collects information on the use of the Nursing Home Compare website, which was developed with the goal of assisting consumers in finding and comparing nursing home quality information. CMS uses three standard mechanisms for collecting website information—website analytics, website user surveys, and website usability tests. These mechanisms have helped identify potential improvements to the website, such as adding information explaining how to use the website. However, GAO found that CMS does not have a systematic process for prioritizing and implementing these potential improvements. Rather, CMS officials described a fragmented approach to reviewing and implementing recommended website changes. Federal internal control standards require management to evaluate appropriate actions for improvement. Without having an established process to evaluate and prioritize implementation of improvements, CMS cannot ensure that it is fully meeting its goals for the website.

GAO also found that several factors inhibit the ability of CMS’s Five-Star Quality Rating System (Five-Star System) to help consumers understand nursing home quality and choose between high- and low- performing homes, which is CMS’s primary goal for the system. For example, the ratings were not designed to compare nursing homes nationally, limiting the ability of the rating system to help consumers who live near state borders or have multistate options. In addition, the Five-Star System does not include consumer satisfaction survey information, leaving consumers to make nursing home decisions without this important information. As a result, CMS cannot ensure that the Five-Star System fully meets its primary goal.

The full report is available here.

December 13, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Thursday, December 8, 2016

New Brief: A Closer Look at the Revised Nursing Facility Regulations

The National Consumer Voice for Quality Long-Term Care, the Center for Medicare Advocacy and Justice in Aging have released the first in a series of briefs regarding the changes to the Nursing Facility regulations.  This first brief focuses on Assessment, Care Planning & Discharge Planning.

Here is the executive summary:

Revised nursing facility regulations broadly affect facility practices, including assessment care planning and discharge planning. The revised assessment process places greater emphasis on a resident’s preferences, goals, and life history. Regarding care planning, a facility must develop and implement a baseline care plan within 48 hours of a resident’s admission, with the comprehensive care plan to be developed subsequently. The care planning team has been expanded to require (among other things) participation by a nurse aide with responsibility for the resident, and the facility must facilitate resident participation. Care planning should include planning for discharge, and the facility must document any determination that discharge to the community is not feasible.

A facility now will have to complete an assessment as well as a baseline care plan that has to be done within 48 hours from admission, as well as a "'comprehensive, person-centered care plan; for each resident within seven days of the initial assessment."

As far as effective dates, the brief explains that "[t]he revised regulations’ assessment provisions are effective on November 28, 2016. Most care planning and discharge planning provisions will be effective on the same date, except for provisions relating to baseline care plans (11/28/2017) and trauma informed care (11/28/2019)."

Be sure to bookmark this brief (or save it to your important documents folder) and keep an eye out for the subsequent briefs. Kudos to these 3 amazing organizations!

 

December 8, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

21st Century Cures Act

The Senate passed the 21st Century Cures Act, HR 34, on December 7, 2016. Having already passed the House, the bill goes to the President for signature.  There are two specific provisions in the Cures Act that bear mention:

The Special Needs Trust Fairness Act in section 5007, which allows a beneficiary with capacity to establish her own first-party SNT (finally) and Section 14017 which deals with capacity of Veterans to manage money.

Section 5007 provides:

SEC. 5007. Fairness in Medicaid supplemental needs trusts.

(a) In general.—Section 1917(d)(4)(A) of the Social Security Act (42 U.S.C. 1396p(d)(4)(A)) is amended by inserting the individual, after for the benefit of such individual by.

(b) Effective date.—The amendment made by subsection (a) shall apply to trusts established on or after the date of the enactment of this Act.

Section 14017 amends 38 USC chapter 55 by adding new section 5501A "Beneficiaries’ rights in mental competence determinations"

The Secretary may not make an adverse determination concerning the mental capacity of a beneficiary to manage monetary benefits paid to or for the beneficiary by the Secretary under this title unless such beneficiary has been provided all of the following, subject to the procedures and timelines prescribed by the Secretary for determinations of incompetency:

“(1) Notice of the proposed adverse determination and the supporting evidence.

“(2) An opportunity to request a hearing.

“(3) An opportunity to present evidence, including an opinion from a medical professional or other person, on the capacity of the beneficiary to manage monetary benefits paid to or for the beneficiary by the Secretary under this title.

“(4) An opportunity to be represented at no expense to the Government (including by counsel) at any such hearing and to bring a medical professional or other person to provide relevant testimony at any such hearing.”.

The effective date for the VA amendment is for "determinations made by the Secretary of Veterans Affairs on or after the date of the enactment...."

The President is expected to sign the bill soon. More to follow.

December 8, 2016 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, Veterans | Permalink | Comments (0)

Monday, November 28, 2016

Medicare Beneficiaries with Physical/Cognitive Impairments and Nursing Home Placement

here.Last month the Commonwealth Fund published an issue brief about the correlation between Medicare beneficiaries with Physical and/or cognitive impariments and the connection to Medicaid and nursing home placements. With all the talk about changes to Medicare and Medicaid, this is a timely topic (but it always is timely), Risks for Nursing Home Placement and Medicaid Entry Among Older Medicare Beneficiaries with Physical or Cognitive Impairment. Here is the abstract:

Issue: More than half of individuals who age into Medicare will experience physical and/or cognitive impairment (PCI) at some point that hinders independent living and requires long-term services and supports. As a result of Medicare’s limits on covered services, Medicare beneficiaries with PCI experience financial burdens and reduced ability to live independently. Goal: Describe the characteristics and health spending of Medicare beneficiaries with PCI and estimate the likelihood of Medicaid entry and long-term nursing home placement. Methods: The Health and Retirement Study 1998–2012 is used to estimate long-term nursing home placement, as well as Medicaid entry. The Medicare Current Beneficiary Survey 2012 provides information on health care spending and utilization. Key findings and conclusions: Almost two-thirds of community-dwelling Medicare beneficiaries with PCI have three or more chronic conditions. More than one-third of those with PCI have incomes less than 200 percent of the federal poverty level but are not covered by Medicaid; almost half spend 10 percent or more of their incomes out-of-pocket on health care. Nineteen percent of individuals with PCI and high out-of-pocket costs entered Medicaid over 14 years, compared to 10 percent without PCI and low out-of-pocket costs.

The brief offers background, data and analysis. For expediency, I've included the conclusion here. I recommend you read the entire brief.

This analysis finds that:

  • A third of older adults have PCI in a given year; more than half of adults who age into Medicare will experience PCI over the remainder of their lifetimes. While the majority of older adults with PCI live in the community, they are at high risk for costly, long-term nursing home placement.
  • Individuals with PCI often have multiple chronic conditions, resulting in high Medicare expenses and out-of-pocket spending. Those with high out-of-pocket spending as a proportion of income as well as PCI were at greater risk for spending down their resources and entering into Medicaid over a 14-year period, compared to those with PCI but without high out-of-pocket spending.
  • The risk for Medicaid entry was greater for those at lower income levels at the beginning of the 14-year period. However, 14 percent of the highest-income group at baseline with high out-of-pocket spending and PCI entered Medicaid by the end of the follow-up period.

Improving financing for home and community-based care would help many beneficiaries with PCI continue to live independently and support families in helping them obtain the care they prefer. Our current health care system, which covers costly institutional services but not social support in the home, distorts the way Americans receive care as they age and die. After people with serious impairment become impoverished and qualify for Medicaid, they are covered for long-term nursing facility care. However, personal care services at home that might have prevented them from needing to turn to Medicaid or enter a nursing home are not covered by Medicare.

Intervening early to prevent nursing home placement and Medicaid enrollment may produce offsetting savings in Medicare and Medicaid. An accompanying brief describes two innovative approaches to providing long-term services and support benefits: a voluntary, supplemental benefit for home and community-based services for Medicare beneficiaries; and an expansion of the Medicaid Community First Choice program for people with incomes up to 200 percent of poverty. Both options show promise of maintaining independent living longer and avoiding costly long-term institutionalization and exhaustion of resources that result in Medicaid enrollment.

(citations omitted).

The brief is also available as a pdf here.

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

Tuesday, November 22, 2016

Block Grants for Medicaid-How States Might Fare?

We blogged earlier about the discussion regarding switching Medicaid to block grants. The impact of doing so would be far reaching and the Commonwealth Fund released an issue brief, What Would Block Grants or Limits on Per Capita Spending Mean for Medicaid?

Here is the abstract from the issue brief:

Issue: President-elect Trump and some in Congress have called for establishing absolute limits on the federal government’s spending on Medicaid, not only for the population covered through the Affordable Care Act’s eligibility expansion but for the program overall. Such a change would effectively reverse a 50-year trend of expanding Medicaid in order to protect the most vulnerable Americans. Goal: To explore the two most common proposals for reengineering federal funding of Medicaid: block grants that set limits on total annual spending regardless of enrollment, and caps that limit average spending per enrollee. Methods: Review of existing policy proposals and other documents. Key findings and conclusions: Current proposals for dramatically reducing federal spending on Medicaid would achieve this goal by creating fixed-funding formulas divorced from the actual costs of providing care. As such, they would create funding gaps for states to either absorb or, more likely, offset through new limits placed on their programs. As a result, block-granting Medicaid or instituting “per capita caps” would most likely reduce the number of Americans eligible for Medicaid and narrow coverage for remaining enrollees. The latter approach would, however, allow for population growth, though its desirability to the new president and Congress is unclear. The full extent of funding and benefit reductions is as yet unknown.

The article provides history, data and discusses strategies. The Brief concludes that the issue, and the resulting outcomes, are not as simple as may be presented.

As the country’s largest insurer, Medicaid is subject to the same cost drivers that affect all providers of health insurance: population growth and demographic trends that increase enrollment, health trends that influence how often people need care and what kind of care they require, and advances in technology that drive up costs, among other factors. But unlike commercial insurers, government-funded Medicaid, in its role as first responder and safety net, is more vulnerable to these trends and to cost increases. For more than 50 years, Medicaid has been rooted in a flexible federal–state partnership, constantly restructured over time to meet current challenges.

Any attempt to restructure federal financing for Medicaid and replace flexibility with strict spending limits—whether in the form of block grants, per capita limits on spending, restrictions on what counts as state expenditures, or a combination of all three—would divorce funding considerations from the real-life needs that have informed federal and state Medicaid policy for half a century. Crucially, a per capita cap would permit population growth to occur. But the limit of lawmakers’ appetite for continued growth in enrollment is unclear. Given how states responded to the relatively mild and temporary funding reductions the federal government enacted in 1981, sweeping changes like those currently under consideration are likely to produce far more substantial fallout.

The 10 page issue brief can be downloaded as a pdf here.

November 22, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Statutes/Regulations | Permalink | Comments (0)

New Handbook-Coordination of Benefits and Medicaid

CMS has released a new handbook, Coordination of Benefits and Third Party Liability (COB/TPL) In Medicaid (2016).  The explanation of the Handbook offers a section "About This Handbook":  "Purpose: The purpose of the Handbook is to provide an overview of COB/TPL policy on a variety of individual subjects... 2. Intended Audience: The Handbook is intended for CMS Central Office (CO) and Regional Office (RO) staff working on COB/TPL issues, state Medicaid agency staff, and all other parties interested in Medicaid COB/TPL policies... 3. Content: The Handbook contains policy guidance on a variety of COB/TPL topics that is current at the time of publication. .."

The manual is available here for download as a pdf.

 

November 22, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Monday, November 21, 2016

Medicaid Changes, Are Block Grants Being Discussed?

Medicaid block grants...again? Not only is Medicare in the spotlight for revamp, so too is Medicaid.  Kaiser Health News reported this in Millions Could Lose Medicaid Coverage Under Trump Plan. The article explains

One major change endorsed by both Trump and House Speaker Paul Ryan (R-Wis.) would transform Medicaid from an entitlement program into a block grant program.

Here’s the difference. In an entitlement program, coverage is guaranteed for everyone who’s eligible. The federal government’s commitment to help states cover costs is open-ended. The states’ obligation is to cover certain groups of people and to provide specific benefits. Children and pregnant women who meet specific income criteria must be covered, for example.

The article notes that this isn't the first time that block grants for Medicaid has been proposed. "Turning Medicaid into a block grant program has been discussed for more than 25 years, but the idea has always met resistance from some states, health providers, health care advocates and Democrats. Even with a Republican majority in Congress and Trump in the White House, the plan would still face an uphill legislative battle."

And don't forget the statements regarding undoing the Affordable Care Act:

The biggest risk for Medicaid beneficiaries comes from pledges by Trump and other Republicans to repeal the Affordable Care Act, which provided federal funding to states to expand Medicaid eligibility starting in 2014. Thirty-one states and Washington, D.C. did so, adding 15.7 million people to the program, according to the government. About 73 million are now enrolled in Medicaid — about half are children.

The article focuses on some of the other options that may be considered in determining whether to make changes to Medicaid.

All these proposed changes are a lot to take in. So hang on and stay tuned.

November 21, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, State Statutes/Regulations | Permalink | Comments (0)