Wednesday, February 26, 2014
Following up on Becky's post of Feb. 25 regarding some recent CRS Reports--I'm using a number of CRS reports in a class I am designing for Valparaiso's new health management and policy master's program. These include:
Medicare, A Primer Download Medicare Primer CRS
Medigap: A Primer Download Medigap CRS
Medicaid, An Overview (referenced by Becky) Download CRS Medicaid an Overview
Medicaid Coverage of Long Term Services and Supports Download Medicaid LTC CRS
Health Care Fraud and Abuse Laws AffectingMedicare and Medicaid: An Overview Download Fraud and Abuse CRS
Medicare Secondary Payer:Coordination of Benefits Download Fraud and Abuse CRS
Overview of Private Health Insurance Provisions in the Patient Protection and Affordable Care Act (ACA) Download Private Health Insurance ACA CRS
CRS reports aren't generally made available to the public, but I have had great luck over the years in obtaining them simply by contactiing one of the authors and requesting a copy.
Friday, February 21, 2014
As introduced in an earlier post, Continuing Care Retirement Communities (CCRCs, also sometimes operating as Life Care Communities or LCCs) are frequently organized and operated as 501(c)(3) entities, exempt from federal income taxes. However, in several states, authorities have opposed exemption from state or local taxes, especially real estate taxes. The campuses of high-end CCRCs can be tempting targets for revenue-hungry local governing units.
Pennsylvania has been a hotbed of such challenges, with the latest ruling issued in Albright Care Services v. Union County Board of Assessment, decided by the Commonwealth Court, an intermediate court of appeals, on January 29, 2014. In Pennsylvania, the question of exemptions from real estate taxes depends on at least two sets of criteria, including (A) proof of operation as an "Institution of Purely Public Charity" or IPPC, and (B) "parcel reviews," to determine whether individual components of property are "actually and regularly used for the identified charitable purposes."
The irony is an operation can be sufficiently "charitable" in nature to qualify for exemption from federal income taxes (and thus usually state income taxes) but not so "charitable" as to qualify for state exemptions that demand more rigorous proof of allegiance to mission.
In Albright, the Commonwealth Court affirmed findings that the company, operating two CCRCs, qualified as an IPPC, thus distinguishing recent rulings that denied real estate exemptions for two other nonprofit continuing care operations, Dunwood Village (2012) and Menno Haven (2007). The Court credited testimony by Albright's accountant on the question of whether the company donated a substantial portion of its services to residents, rejecting the county's argument the CCRCs were reaping a Medicaid "windfall."
The Court also affirmed the finding that several of Albright's real estate parcels was used to support the charitable mission. It called the independent living facilities a "closer question," but ultimately concluded such units were operated as part of a "comprehensive care scheme" that advanced a unified charitable purpose, citing a 2007 Pennsylvania Supreme Court decision in Alliance Home of Carlisle v. Board of Assessment Appeals. It remanded for further findings on whether parcels containing a museum and flood plain properties were used to advance the CCRC's charitable purpose.
The Albright decision was released as an "unreported panel decision" that may be "cited for its persuasive value, but not as binding precedent." The Albright decision on CCRCs follows a series of Pennsylvania cases arguing state constitutional implications of exemptions for real property, affecting everything from summer camps to hospitals and universities, including the 4-3 ruling by the Pennsylvania Supreme Court in Mesivtah Eitz Chaim of Bobov v. Pike County Board of Assessments (2012). In some counties, nonprofits may feel under pressure to enter into "PILOTS," or negotiated agreements for "Payments in Lieu of Taxes," to avoid litigation over exemptions.
Thursday, February 20, 2014
In a previous post, I reported on a senior care whistleblower case, where a court ruled that a former corporate officer, who was also the in-house counsel, cannot participate in a False Claims Act suit, if the information supporting the claim comes from privileged communications received in his role as an attorney. The two other former executives of the company, non-lawyers, could have participated as qui tam plaintiffs; however the entire case was dismissed by the court as a sanction for improper disclosure of attorney-client privileged information.
Most whistleblowers are insiders, either current or former employees; however, that is not always true. The "relator" (that's False-Claim-Act-speak for whistleblower) in a suit brought against RehabCare, Rehab Systems, and Health Systems, Inc. was the CEO of a competitor, Health Dimensions Rehabilitation, Inc., who first heard about a successful use of "referral fees" during a public conference call hosted by RehabCare.
"Pride goeth before a fall," as our mothers might say. In this case, the CEO's research into the referral fees resulted in allegations the fees were intended to generate referrals of clients covered by Medicare and Medicaid, thus giving rise to alleged violations of the federal Anti-Kickback Act. The defendants denied all allegations.
In the RehabCare case, which settled earlier this year for a reported $30 million, the whistleblower, Health Dimensions Rehabilitation, Inc. is in line to receive about $5.7 million from the settlement, according to the U.S. Justice Department.
Penn State Dickinson School of Law is hosting a half-day program examining "Whistleblower Laws in the 21st Century," on March 20, 2014. Speakers include both academic scholars and experienced attorneys who have advised or represented parties in False Claims Act cases in health care, including "senior care."
Sunday, February 9, 2014
Recently an individual contacted me with a fact pattern to present on our Blog, a variation on what we've written about in the past. Here are the basics. I've assigned some gender roles to make the fact pattern easier to follow:
The daughter of an older parent wants to know whether she has a legal "duty" to interfere with her brother's role in the life of their parent, where it appears the brother is failing to either apply for Medicaid or otherwise pay the parent's rehabilitation facility. The parent is not unhappy with the son's actions (or rather, inaction), and in fact declined to give power of attorney to the daughter, even when told of a likely "eviction" for nonpayment of the bill. The parent has mostly recovered from the medical crisis that triggered the need for care -- and just wants to go home. Parent has made it clear to daughter that her help is "unnecessary."
The complication is the size of the unpaid bill, more than $100,000. Apparently the care facility, approved to receive Medicare and Medicaid, is now demanding that the daughter pay the bill. Apparently no one applied for Medicaid and it is unclear whether Medicare ever paid. Daughter doesn't know much about her parent's income, but assumes it is limited and probably the only asset is a house, where the widowed parent lives when not in a hospital or in a care facility, and where the brother also resides.
The rehab facility is in Pennsylvania, home to "filial support" laws that have been enforced against adult children, with or without evidence of fault on the part of the child who is sued. Under Pennsylvania's law, those with statutory standing to pursue a support claim include a "person" who has provided care or maintenance, and that has been interpreted to include residential care facilities. We've discussed tough filial support decisions before on this Blog, including Health Care & Retirement Corp. of America, v. Pittas, (Pa. Super. Ct. 2012).
Thus, a lawyer is probably going to have to break the bad news to the daughter that the facility arguably has a potentially viable claim under 23 Pa.C.S.A. Section 4603. Daughter would appear to have some equitable defenses, including laches, but nothing that is expressly provided in the Pennsylvania statute. But who can afford to defend such a case? The facility appears to be using the child's potential liability under filial support laws to insist the daughter take action, either to obtain a guardianship or other order that would permit her (force her?) to apply for Medicaid -- and the threat may work. The longer she waits, the tougher it will be to get sufficient retroactive coverage. But in this instance, it is not clear whether the parent's capacity is impaired, or whether the parent is simply following a long pattern, even if unwise, of preferring one child's "help" over the other.
The moral question of "Am I my brother's keeper," becomes a Family Keeper's Dilemma, when you add in the third part of the triangle, a parent in need of care or protection, against their will. And the moral question becomes a legal liability question, when a filial support law that permits third-party suits is involved.
For another Family Keeper's Dilemma, see the Washington Court of Appeals' January 14 decision, "published in part," in the case of In re Knight, addressing the level of proof required for one son to obtain a Vulnerable Adult Protection Order, to prevent his brother, with a mental health history and a criminal record, from continuing to live with or near their 83-year-old mother. The mother opposed the protection order.
Friday, February 7, 2014
In United States ex rel. Fair Laboratory Practices Associates v. Quest Diagnostics Inc., decided by the Second Circuit on October 25 2013, we see another qui tam suit, where former employees allege the company's participation in a scheme to defraud Medicare and Medicaid, this time by allegedly underpricing certain services in order to stimulate referrals of clients who qualified for higher rates under Medicare or Medicaid coverage. That allegation triggered the federal Anti-Kickback Statute that applies to federal health care programs.
If anyone is interested in -- or skeptical about -- making a whistleblower claim part of a "business plan," just read this decision. The plaintiff, Fair Laboratory Practices Associates, was formed as a partnership by three former employees, who combined their knowledge in an attempt to confront what they believed were fraudulent sales practices. The federal False Claims Act permits successful whistleblowers to share in any financial recovery for the U.S.
Just one little problem. One of the members of the partnership was a former vice president and general counsel for the defendant corporation, and he was disclosing information received in his role as the only in-house lawyer for the company. Indeed, as reported in the opinion, that is exactly why the other two whistleblowers invited him to join their partnership, because his status as a lawyer "would improve our credibility with the government."
Unfortunately for the plaintiffs' group, it also triggered Rule 1.9 of New York's ethical rules, prohibiting a lawyer from disclosing confidential information of former clients. While the 2d Circuit credited the attorney's contention that he reasonably believed his employer intended to commit a crime, the court concluded the level of disclosure was "greater than reasonably necessary to prevent any alleged ongoing fraudulent scheme." The Court rejected the argument that the policies underlying the False Claims Act trumped the state's ethical rules for legal counsel.
More importantly, the court concluded that although the other two non-lawyer partners could have filed the qui tam action based on the information they alone possessed as former executives for the company, once their knowledge became entwined with the attorney's unauthorized disclosures, the partnership as a group was disqualified. Case dismissed (although the Court does leave the door open for a new relator as plaintiff, or the U.S. on its own).
Here's more on the case by Joseph Callanan, an associate editor for the American Bar Association's Litigation News.
Here is useful background on the federal Anti-Kickback law, courtesy of the American Health Care Association.
Tuesday, February 4, 2014
On January 30, 2014, the Indiana Court of Appeals reversed a ruling in favor of a nursing home, concluding that a daughter who signed the nursing home admission agreement on the line for "responsible party/agent" was not liable for breach of contract where she held no Power of Attorney or other authority to handle her mother's finances.
In Hutchinson v. Trilogy Health Services LLC, the mother, suffering from cancer and needing constant care after a hospitalization, was admitted to the skilled care facility from November 11, 2011 until February 5, 2012. She passed away in February 2013. During the interim, Trilogy sued both the mother and the daughter for breach of contract. Following a trial, the small claims court entered judgment against the daughter in favor of Trilogy for $2,610 plus court costs. The amount of the judgment covered costs for "bed hold fees, beauty shop services and respiratory equipment."
In reversing the trial court judgment, the Indiana Court of Appeals cited the lack of any evidence the daughter held power of attorney or that daughter misused her mother's resources, as well as the son-in-law's testimony that a nursing home representative reassured his wife at the time of signing that she was not incurring personal liability for her mother's costs of care. The Court of Appeals distinguished the facts from those in cases such as Sunrise Healthcare Corp. v. Azarigian, a Connecticut appellate case decided in 2003, where the daughter held Power of Attorney and used it to make transfers that created ineligibility for Medicaid.
I hope readers will forgive me for a moment of immodesty for mentioning that the Indiana Court of Appeals also cited my law review article analyzing "responsible party" liability issues. When I wrote that article for the University of Michigan's Journal of Law Reform, it was exactly this set of facts I was pointing to with concern, where an "innocent" family member or other person signs a nursing home's document believing that doing so is necessary to authorize admission, with no intent (and sometimes no personal ability to afford) to pay privately, only later to be sued for "breach of contract" or on statutory theories such as "filial support."
Monday, February 3, 2014
As readers of this blog will recognize, whistleblower-triggered suits alleging fraud in Medicare and Medicaid are big business.
The February 2014 issue of The Washington Lawyer, published by the D.C. Bar, has a fascinating article written by Joshua Berman, Glen Donath, and Christopher Jackson, two of whom are former federal prosecutors. In "A Casualty of War: Reasonable Statute of Limitation Periods in Fraud Cases," they outline modern use -- perhaps misuse -- of the Wartime Suspension of Limitations Act (WSLA), originally enacted in the 1940s.
Beginning in 2008, the statute, and a more recent tweak under the Wartime Enforcement of Fraud Act (WEFA), has become a key tool of the Department of Justice in pursuing arguably "stale" claims of fraud. The original provision "tolls" the statute of limitation for such claims until three years after the termination of hostilities for "virtually any kind of fraud in which the United States has been the victim." The 2008 provision, changing the three-year extension to five-years, also "simultaneously broadened the circumstances in which the WSLA's tolling provision is triggered and narrowed the circumstances in which the 'war' can be said to have ended." The result is potentially unlimited periods within which to file suit. The authors explain:
"Now, under the post-amendment WSLA, virtually any congressional authorization for the use of military force -- such as that which was approved by Congress prior to the wars in Afghanistan and Iraq and also recently contemplated with regard to Syria -- will trigger the statute. But only a formal proclamation by the president, with notice to Congress, or a concurrent resolution of Congress will suffice to end the 'war' and resume the running of the five-year clock under the original limitations period."
The authors point out that during World War II, it was "understandable and desirable that the government be given flexibility to bring cases that would otherwise become stale." But the effect of the WLSA is not limited to fraud claims against war-related industries such as defense contractors. The authors critique application beyond the original justification of wartime, to Social Security fraud or False Claims Act violations, the latter the basis for most qui tam claims in senior care and health care industries.
Wednesday, January 29, 2014
Family Court & Medicaid: Does It Have a Role in Allocating Income Between Community Spouse and Nursing Home?
In R.S. v. Division of Medical Assistance & Health Services, released for publication by the Appellate Division of the Superior Court of New Jersey on January 23, the state's Medicaid agency successfully argued that a Family Court order allocating the institutionalized spouse's income to support for the community spouse was not binding on the agency in determining the Community Spouse Monthly Income Allowance (CSMIA). Thus, in the case before the court, the community spouse who had an annual salary of $22,659 was limited to the CSMIA calculation of $1,514 per month as support from her institutionalized husband, rather than the Family Court's order of $3,460 per month.
The appellate court ruling appears to be strongly influenced by facts suggesting the Family Court award, which was not opposed by the husband, was the result of Medicaid planning advice, rather than a fact-based determination of spousal support among separated or divorcing spouses. The appellate decision begins by noting the court is "asked once again to address 'the continuing tension between the State's effort to conserve Medicaid resources for the truly needy and the legal ability of institutionalized Medicaid recipients to shelter income for the benefit of their non-institutionalized spouses,'" quoting a previous New Jersey opinion in 2005.
Despite statutory grounds under Medicaid law to "protect" community spouses against "impoverishment" when their husband or wife goes into a nursing home, this ruling permits state calculations of Medicaid allowances to control just how much (or rather, how little) "protection" is available, at least where the allocation occurs at or near the time of nursing home admission.
Tuesday, January 28, 2014
Senior Care -- in all of its guises -- is Big Business. And much of that big business involves government contracts and government funding, and therefore the opportunity for whistleblower claims alleging mismanagement (or worse) of public dollars. For example, in recent weeks, we've reported here on Elder Law Prof on the $30 million dollar settlement of a whistleblower case arising out of nursing home referrals for therapy; a $3 million dollar settlement of a whistleblower case in hospice care; and a $2.2 billion dollar settlement of a whistleblower case for off-prescription marketing of drugs, including drugs sold to patients with dementia.
While the filing of charges in whistleblower cases often makes headlines, such as the recent front page coverage in the New York Times about the 8 separate whistleblower lawsuits against Health Management Associates in six states regarding treatment of patients covered by Medicare or Medicaid, the complexity of the issues can trigger investigations that last for years, impacting all parties regardless of the outcome, including the companies, their shareholders, their patients, and the whistleblowers, with the latter often cast into employment limbo.
Penn State Dickinson School of Law is hosting a program examining the impact of "Whistleblower Laws in the 21st Century: Greater Rewards, Heightened Risks, Increased Complexity" on March 20, 2014 in Carlisle, Pennsylvania.
The speakers include Kathleen Clark, John S. Lehman Research Professor at Washington University Law in St. Louis; Claudia Williams, Associate General Counsel, The Hershey Company; Jeb White, Esq., with Nolan Auerbach & White; Scott Amey, General Counsel for the Project on Government Oversight (POGO); and Stanley Brand, Esq., Distinguished Fellow in Law and Government, Penn State Dickinson School of Law.
Stay tuned for registration details, including availability of CLE credits.
January 28, 2014 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Monday, January 20, 2014
I've been catching up on reading of practitioners' blogs. I quickly came across interesting discussions of potentially cutting edge decisions in recent law and aging cases. Here's a selection:
- From Tucson, Arizona, Robert Fleming's Legal Issues Newsletter reports on the background of the Arizona Court of Appeals decision on January 2, 2014 in Savittieri v. Williams, affirming the post-death annulment of a woman's marriage for lack of capacity.
- From Dearborn Michigan and Pittsburgh, Pennsylvania, John Payne's Off the Top O' My Head, comments on recent decisions within the Third Circuit that address the use of spousal annuities or trusts in Medicaid planning. For example, he discusses the January 14, 2014 ruling in the United States District Court, Western District of Pennsylvania in Zahner v. Mackereth, that makes fact-specific rulings in three consolidated cases involving annuities and which also, surprising, revisits the dormant "Granny's Lawyer Goes to Jail" provision of federal Medicaid law. Fortunately for attorneys, the court agrees with former Attorney General Janet Reno that application of the law to legal advice is unconstitutional. Nonethless, I think it is safe to say that the Pennsylvania Department of Public Welfare's attempt to push the law is an indication of the battle lines being drawn over use of annuities.
- From Fairview, Oregon, Orrin R. Onkin's Oregon Elder Law, reports on an array of elder abuse cases, including a 2013 decision by the Oregon Court of Appeals affirming an award of treble damages under the state's elder abuse statute against an ambulence company, in Herring v American Medical Response Northwest, Inc.
Friday, January 17, 2014
"Missing the Forest for the Trees: Why Supplemental Needs Trusts Should be Exempt from Medicaid Determinations," written by Jeffrey R. Grimsyer as a law student for the Chicago Kent Law Review in 2014, is a thoughtful analysis of the relationship between Medicaid eligibiltiy and supplemental needs trusts, also sometimes called special needs trusts or SNTs.
"[T]he trust provisions have confused federal courts, causing a recent circuit split about whether assets contained within SNTs can be counted by state Medicaid agencies when they determine the trust beneficiaries' Medicaid eligibility and benefits. On one hand, one can read [Section] 1396p(d)(4) as being mandatory, which would require all states to exempt assets in SNTs when determining Medicaid eligibility. This would allow the beneficiaries to continue using SNTs and remain eligible for Medicaid, but would force the states, as payors, to cover more citizens under Medicaid. On the other hand, one can interpret [Section] 1396p(d)(4) as being optional, which would permit each state to enact laws that disqualify beneficiaries of SNTs from receiving Medicaid. This would enable states to save some of their limited resources, but would cause beneficiaries to lose their Medicaid benefits if they use SNTs."
Grimeyer argues the Medicaid section in question is "best read as being mandatory on the states based on the applicable statutory interpretation tools."
Friday, January 10, 2014
I can remember when tax-savvy couples might plan their wedding dates according to the tax impact, and thus there was talk in political circles about the "Marriage Tax Penalty."
Recently, one of our Elder Law Prof Blog readers wrote to suggest we post articles about the impact of late-in-life marriage on Medicaid eligibility. Good idea! Many might assume that a well-drafted prenuptial agreement should preserve a split in retirement savings. That assumption could well be dangerous -- in the context of Medicaid. Here are links to a few recent articles, with brief excerpts to whet the appetite for reading more:
Late Life Love (Part II), by Monica Franklin, 49 Tennessee Bar Journal 30 (Feb. 2013):
"When discussing prenuptial agreements and marriage, we need to advise our clients that if one spouse needs Medicaid to pay for long-term care, the assets of both spouses will be considered by the Medicaid agency ([Tennessee] Department of Human Services, DHS). However, if the couple chooses cohabitation, DHS only considers the assets of the disabled partner. This information is crucial for couples considering late-life marriage."
Paying for Long-Term Care in Illinois, by William Siebers and Zach Hasselbaum, 100 Illinois Bar Journal 536 (October 2012), noting that with changes to Medicaid law, effective in Illinois in 2012:
"Eligibility for long-term care assistance will be denied [in Illinois] if the community spouse or institutionalized spouse refuses to disclose assets during the application process. Prior to this change, a community spouse with separately owned assets held for at least five years could decline to have those assets considered in the application process for the institutionalized spouse. This scenario commonly arose in second marriage situations. . . . "
Gray Divorce and Remarriage, by William DaSilva and Steven Eisman, 83 New York State Bar Journal 26 (July/August 2011):
"Another growing trend in the practice of elder law -- relating to both matrimonial law and health care planning -- is the use of so-called 'Medicaid divorces.' In fact, the use of Medicaid gifting and Medicaid planning received judicial sanction from New York's highest court in 2000 in [the case of] In re Shah, [95 NY 2d 148 (2000)]. In this type of divorce, the 'spouse in the community' ... stands to lose a lifetime's worth of savings unless a health care plan is devised that provides care for the ill or incapacitated spouse and simultaneously protects the assets of the spouse in the community so that both spouses do not end up impoverished wards of the state. A prenuptial agreement alone will not defeat a claim of Medicaid."
In my admittedly quick search for articles on the topic of prenuptial agreements and Medicaid, I did not find a comprehensive discussion by academics or law students in an academic law review. Rather, as suggested by the above citations, the articles I found were all state specific, from state bar journals. Perhaps one of our law school colleagues has a work-in-progress or article to share? Or, alternatively, perhaps some of our academic readers are looking for a good, comprehensive research topic for the future.
For our lay readers, this is a good opportunity to remind you this Blog is not intended to be a source of legal advice for specific issues. Of course, we do recommend that you consult with an experienced elder law attorney for state-specific advice!
Thursday, January 9, 2014
The National Bureau of Economic Research has released 2013/Vol. 2 of the Bulletin on Aging and Health. The 2013 No. 2 Bulletin includes the articles below:
1) The Value of Medicaid to Older Households
by Mariacristina De Nardi, Eric French, and John Bailey Jones
2) Who Uses the Roth 401(k)?
by John Beshears, James Choi, David Laibson, and Brigitte Madrian
3) Do Financial Incentives Induce Disability Insurance Recipients to Return to Work?
by Andreas Kostol and Magne Mogstad
Also: Abstracts of Selected Recent NBER Working Papers
NBER Profile: Michael Baker
View a printable PDF copy of the 2013 No. 2 NBER Bulletin on Aging and Health here.
The HTML version is available at the Bulletin's homepage.
Wednesday, January 8, 2014
Bloomberg News writers Alex Nussbaum, Alison Vekshin and Gigi Douban offer a timely article, available on the MSN website, titled "Obama Medicaid Split Creates Two Americas for the Poor." The article opens by contrasting the impact of states deciding whether to expand the availability of Medicaid, using the experiences of two women, one in California and one in Alabama, each facing health care crises:
"The women’s fates are the consequence of a political debate that’s divided the U.S. roughly along party lines: Democratic-led states have expanded Medicaid programs for the poor under the health law; most Republicans have refused. While the law’s online exchanges draw more scrutiny, it’s Medicaid that may determine the health of millions of Americans. The expansion is one of the twin pillars created by the law to supply medical care to the nation’s uninsured, complementing subsidies for private insurance."
The article also has useful links to health policy and economics studies, as well as commentary by political leaders, including Pennsylvania's former Governer Ed Rendell.
Tuesday, January 7, 2014
Elder law attorney and Medicaid law guru Julian Zweber sent along this brief summary of section 202 of the Bipartisan Budget Act of 2013. This provision of the budget bill addresses states' ability to recover Medicaid costs from PI settlements. Here's his take on the new law:
I've reviewed the recent amendments that appear to affect the Ahlborn case and conclude that the Ahlborn is still good law but more MA expenses may now be recovered under the assignment of claims against third parties. I conclude:
1. The changes are mandatory on the states. See the emphasized language in 1396k(a). The state plan "shall" rather than "may."
2. The amendments do not change the nature of the assignment of benefits. See the amendment to 1396k(a)(1)(A). The Ahlborn court focused on the nature of an assignment as opposed to a subrogation claim. A recipient of MA continues to assign his or her rights to MA for recovery from liable third parties for expenses paid by MA.
3. The state's right to recovery is expanded from just medical expenses paid by MA, to all expenses paid by MA under the State Plan. This would include non-medial expenses such as benefits provided under home- and community-based services.
4. The expansion of allowable expenses subject to assignment and recovery is the only change made by these amendments.
5. An apportionment of any settlement that provides less than full recovery of all damages would still be required to determine which part of the settlement is attributable to claims subject to MA assignment. To the extent that the MA part of the settlement pie becomes bigger, the injured party will receive less from the settlement, but the MA claim does not have to be paid in full before the plaintiff recovers. Ahlborn is not overturned.
Thank you, Julian!
Monday, January 6, 2014
Catching up after a busy weekend at the Association of American Law Schools (AALS) Annual Meeting 2014 in New York City, I'm happy to report the presentations at the Section on Aging and the Law seemed to go smoothly and were well received, with a very engaged audience. While the weather made travel to and from NYC a bit tricky, it also seemed to "encourage" strong attendance at sessions. (I found myself skating even when not visiting the rink at Rockefeller Plaza!)
Section Chair Susan Cancelosi (Wayne State) was snowed out -- but I suspect Susan would be pleased by the reaction to the program she planned. Thank you, Susan, for putting together the theme, securing speakers, making sure we were all on track, and creating a back-up weather plan. We've decided you should be the moderator next year, if you don't mind!
Dick Kaplan (Illinois) led off the panelists, using his best "Dr. Phil" style to walk us through (both literally and metaphorically) the latest changes to Medicare triggered by the Affordable Care Act and other recent legislation. Recognizing that many in our audience do not teach elder law or health care law, Dick offered information useful to all academics who "expect" to retire. For example, recent information from the Employee Benefit Research Institute supported his forecast that a 65-year old person retiring in 2012 would need substantial saving just to cover out-of-pocket medical expenses, in the range of $122,000 -$172,000 for men and between $139,000 - $195,000 for women (with projections also affected by prescription drug usage). Dick reminded us that this figure does NOT include any costs for long-term care.
Next on the panel was Laura Hermer (Hamline), who is new to our Section -- and a very welcome addition. Using her health law background, Laura outlined the maze of programs, including state plan innovations and waiver programs under Medicaid, that may provide "long-term services and supports" (or LTSS -- the latest acronym that seems to be an intentional step away from a "care" model) for older persons. Her presentation emphasized the shift to home or community based care, but Laura made clear that this shift depends heavily on unpaid care by family members.
Incoming Section Chair Mark Bauer (Stetson) made effective use of visual images of 55+ communities in Florida to demonstrate his concern that exemptions from civil rights protections that permit age-restricted communities may not be matched by actual benefits for the older adults targeted as residents. Mark stressed the percentage of housing that is not designed to match predictable needs for an aging population. Examples included multi-story designs without elevators, steps into even ground-level units, and bathrooms without wheel-chair accessibility. Mark's presentation expanded on his recent article in the University of Illinois' Elder Law Journal.
Speaking last, my topic was the latest state law developments tied to federal laws that authorize nursing homes to compel a "responsible party" to sign a prospective resident's nursing home contract. States are creating potential personal liability for costs of care for family members, agents or guardians, or transferors or transferees of resources, if the resident is deemed ineligible for Medicaid. Here are links to a copy of the slides I used for my presentation on "Revisiting Nursing Home Contracts," as well as to a related short article I was invited to write for the Illinois State Bar Association's Trusts & Estates Section in December 2013.
The panel presentations were followed by great questions and observations from the audience, further highlighting the financial challenges of aging. Plus, it was wonderful to see several new members volunteering to join the planning committee for future programs for the Aging and Law Section of AALS. And welcome back to the board to Alison Barnes (Marquette Law).
January 6, 2014 in Consumer Information, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Programs/CLEs, Retirement, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 1, 2014
University of Illinois' Richard Kaplan will lead off the presentations at AALS's Aging and Law section meeting later this week. The theme of the program is "From the Affordable Care Act to Aging in Place: What You Need to Know as You Grow Older."
Professor Kaplan's presentation will focus on Medicare, and he has a practical focus, relevant to all AALS attendees (either sooner or later!). He observes, "Paying for health care costs in retirement is very different from what most academics have experienced during their working lives. This session will explain the four distinct Parts of Medicare and the various decisions that retirees must make regarding the coverages they want and the costs those decisions entail."
Dick is well-known to elder law faculty and to the broader world of health-care and retirement income scholars, both nationally and internationally. His article "Top Ten Myths of Medicare," published in 2012, is one of the leading downloads on SSRN.
The Aging and the Law Section panel program runs from 3:30 to 5:15 on Friday, January 3, with a short Section Business meeting after the program.
Monday, December 30, 2013
Much of the national media attention on the Affordable Care Act has focused on those who were previously uninsured or those who must change policies and coverage. But there are also important studies emerging on how the ACA will affect seniors.
At the AALS annual meeting in New York City, Hamline University School of Law's Laura Hermer will address changes to Medicaid in the Affordable Care Act that impact elders, most notably concerning long term care and care coordination for "dual eligibles." Professor Hermer will also discuss some of the many problems for beneficiaries that remain or, in some cases, may be created following ACA-related changes.
Professor Hermer has two new articles scheduled for publication in 2014, including "Enterprise Liability: Medical Malpractice Reform in the Service of Improved Health Care Quality and Outcomes," to be published in the Journal of Health Care Law and Policy, and "The Future of Medicaid Supplemental Payments: Can They Promote Patient-Centered Care?," co-authored with Dr. Merle Lenihan of University of Tennesseee, to be published in the Kentucky Law Journal.
Laura's ACA forecast presentation will be part of the panel assembled by Wayne State Law Professor Susan Cancelosi for the Aging and Law Section at the AALS meeting on Friday, January 3, scheduled to begin at 3:30 p.m.
Thursday, December 26, 2013
Hard to believe, but AALS Annual Meeting 2014 is just around the corner. Aging & Law Section Chair Susan Cancelosi (Wayne State Law) has planned a great program, and we look forward to the interaction between panel members and the audience.
The theme is "From the Affordable Care Act to Aging in Place: What You Need to Know as You Grow Older."
Mark Bauer (Stetson Law) on "Aging and 55+ Age-Restricted Housing."
Laura Hermer (Hamline Law) on "changes to Medicaid under the Affordable Care Act that impact the elderly, with particular attention to several state implementations of relevant state plan options and demonstration projects involving dual eligibles and others."
Richard Kaplan (Illinois Law) on “the very different world of financing health care that awaits retirees, including how to navigate the various Parts of Medicare and their attendant problems.”
Katherine Pearson (Penn State Law) will discuss "the emerging trend of states adopting laws authorizing nursing homes to collect unpaid debts from family members or fiduciaries."
I'll provide more details about the individual speakers' programs, both before and after the event. But remember to mark your calendar for New York City, on Friday, January 3, at 3:30-5:15. As always, there will be a short business meeting following the presentations and discussion.
Tuesday, December 24, 2013
I've been reading discussions lately on elder law listservs, debating whether nursing homes' attempts to hold family members contractually liable to pay bills violate the Nursing Home Reform Act's bar on mandatory third-party guarantees of payment.
This issue was addressed recently by the United States District Court for the Western District of Pennsylvania in White v. Jewish Association on Aging, where a pro-se plaintiff alleged a violation of NHRA at 42 U.S.C. §§ 1395i-3(c)(5)(A)(ii) and 1396r(c)(5)(A)(ii), tied to allegations that his mother's nursing home required him to sign the admission agreement for his mother.
The U.S. District Court dismissed the suit, rejecting NHRA as permitting a private right of action, but then also addressing the specific "guarantee" issue urged by the son:
"In signing the Admissions Agreement and agreeing to become the Responsible Party... Plaintiff consented to apply Ms. White's financial resources to cover her care.... The Agreement also explicitly states that the Responsible Party's failure to apply a Resident's income and assets to pay for the care would result in the Responsible Party becoming personally liable—not for the bill itself— but 'for any misappropriation or misapplication of Resident's funds or assets.' Plaintiff makes no allegation that Defendant is doing anything other than what is expressly permitted—requiring him to apply Ms. White's finances to cover her costs. Thus, Plaintiff is not being treated as a guarantor, and his claim should be dismissed." (citations ommited)
Hat tip to Rob Clofine, Esq. of York, Pennsylvania for the White case link.