Monday, January 15, 2018

Filial Friday on Monday: PA Supreme Court Agrees to Hear Further Appeal of "Reverse" Filial Support Case

Regular readers of this Blog will remember that we have been following the case of Melmark Inc. v. Schutt, wherein a residential facility for disabled children and adults in Pennsylvania, has sought to hold 70+ year-old New Jersey parents liable for approximately 13 months of care the facility provided for their autistic adult son after New Jersey stopped public payments for his support.  The parents were successful at the trial and intermediate courts of appeal in Pennsylvania, arguing that New Jersey, not Pennsylvania law controlled the issue of any filial obligation.  Pennsylvania statutory law imposes liability on certain family members, without regard to age, to cover costs of care provided to "indigent" children or parents, while New Jersey's filial support statute limits obligations for older adults, for "any person 55 years or over," to support for minor children or spouses.  See N.J.S.A. Section 44:1-140(c) (Relatives Chargeable).   The unpaid costs in question totaled more than $200,000, before the Melmark took it upon itself to take the son back to New Jersey, dropping him off at a local hospital.

On December 26, 2017, the Pennsylvania Supreme Court granted the facility's request for further appeal on the following issues:

1. Whether the Superior Court erred as a matter of law in finding that New Jersey’s filial support statute, rather than Pennsylvania’s, applied
in this matter where there is no conflict between the New Jersey statute and Pennsylvania’s statute under the facts of this case?


2. Whether the Superior Court erred in finding that New Jersey has a greater interest in the application of its filial support statute where, inter alia, all of the relevant contacts, with the exception of the residency of Respondents Clarence and Barbara Schutt, are with Pennsylvania; where the Schutts took affirmative actions to keep their highly disabled son in a Pennsylvania nonprofit residential and therapeutic institution, Petitioner Melmark, Inc., with the avowed aim of Melmark funding his care for his “entire life,” including manipulating the Pennsylvania and New Jersey legal systems to prevent his return to New Jersey; and where the Superior Court’s decision results in Melmark being entirely uncompensated for providing an extended period of vital, intensive care for the Schutts’ son?


3. Whether the Superior Court erred in finding that the lower court properly denied relief on Melmark's claims for quantum meruit and unjust enrichment? 

I've been teaching Conflicts of Law for many years and I actually used a variation on this problem for the final exam in my Fall 2017 course.  As was true in the lower courts in the Melmark case, most of my students came to the conclusion that under the forum's choice of law rules, the state with the most substantial relationship to the issue of parental liability for statutory support was the state where the parents and son were residents, here New Jersey.  

My best guess is that the Pennsylvania Supreme Court may go more deeply into  the common law claims for "quantum meruit and unjust enrichment" (which in Pennsylvania are usually treated as alternative names for the same causes of action, sometimes termed "quasi-contract" claims). 

As I've been saying for months now, this is a tough case for everyone.  

January 15, 2018 in Current Affairs, Ethical Issues, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, January 11, 2018

ER Visit Signals Underlying Issues?

Kaiser Health News ran a story about how an ER visit may signal underlying, and maybe undiscovered, issues for elders. For Elder Health, Trips To The ER Are Often A Tipping Point explains that "[a]n older person’s trip to the ER often signals a serious health challenge and should serve as a wake-up call for caregivers and relatives."  Based on a study last year, the article reports that statistics bear this out: "[s]ix months after visiting the ER, seniors were 14 percent more likely to have acquired a disability — an inability to independently bathe, dress, climb down a flight of stairs, shop, manage finances or carry a package, for instance — than older adults of the same age, with a similar illness, who didn’t end up in the ER."  This doesn't mean those who visited the ER were always admitted, and in fact, in many instances the converse was true.

The takeaway: Illnesses or injuries that lead to ER visits can initiate “a fairly vulnerable period of time for older persons” and “we should consider new initiatives to address patients’ care needs and challenges after such visits,” said one of the study’s co-authors, Dr. Thomas Gill, a professor of medicine (geriatrics), epidemiology and investigative medicine at Yale University.

The article notes that those needing help with ADLs or IADLs for example, are particularly at risk of having problems after an ER visit.

January 11, 2018 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Wednesday, January 3, 2018

Monetary Penalties vs. SNFs lessened

According to a recent story in Kaiser Health News, Trump Administration Relaxes Financial Penalties Against Nursing Homes, "[t]he ... administration — reversing guidelines put in place under President Barack Obama — is scaling back the use of fines against nursing homes that harm residents or place them in grave risk of injury." According to the article, the change was requested by the industry. Is the change needed? Judge for yourself:

Since 2013, nearly 6,500 nursing homes — 4 of every 10 — have been cited at least once for a serious violation, federal records show. Medicare has fined two-thirds of those homes. Common citations include failing to protect residents from avoidable accidents, neglect, mistreatment and bedsores.

The new guidelines discourage regulators from levying fines in some situations, even when they have resulted in a resident’s death. The guidelines will also probably result in lower fines for many facilities.

Both sides have weighed in on the appropriateness of the loosening of penalties, with opponents expressing concern about reducing deterrence. The changes have been gradually occurring over the fall. "In November, the ... administration exempted nursing homes that violate eight new safety rules from penalties for 18 months. Homes must still follow the rules, which are intended, among other things, to reduce the overuse of psychotropic drugs and to ensure that every home has adequate resources to assist residents with major psychological problems."  The New York Times also ran a story about the changes, which is available here.

January 3, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink

Monetary Penalties vs. SNFs lessened

According to a recent story in Kaiser Health News, Trump Administration Relaxes Financial Penalties Against Nursing Homes, "[t]he ... administration — reversing guidelines put in place under President Barack Obama — is scaling back the use of fines against nursing homes that harm residents or place them in grave risk of injury." According to the article, the change was requested by the industry. Is the change needed? Judge for yourself:

Since 2013, nearly 6,500 nursing homes — 4 of every 10 — have been cited at least once for a serious violation, federal records show. Medicare has fined two-thirds of those homes. Common citations include failing to protect residents from avoidable accidents, neglect, mistreatment and bedsores.

The new guidelines discourage regulators from levying fines in some situations, even when they have resulted in a resident’s death. The guidelines will also probably result in lower fines for many facilities.

Both sides have weighed in on the appropriateness of the loosening of penalties, with opponents expressing concern about reducing deterrence. The changes have been gradually occurring over the fall. "In November, the ... administration exempted nursing homes that violate eight new safety rules from penalties for 18 months. Homes must still follow the rules, which are intended, among other things, to reduce the overuse of psychotropic drugs and to ensure that every home has adequate resources to assist residents with major psychological problems."  The New York Times also ran a story about the changes, which is available here.

January 3, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink

Emergency Preparedness Legislation

The National Consumer Voice for Quality Long-Term Care sent an email that emergency preparedness legislation was introduced at the end of 2017.  According to the email the bill was introduced by Florida Congresswoman Wasserman Schultz and Michigan Congressman Walberg. The bill, H.R. 4704, available here, is intended to incorporate the "emergency preparedness final rule for skilled nursing facilities and nursing facilities as conditions of participation under the Medicare and Medicaid programs, and for other purposes" into the U.S. Code. The bill would amend the Medicare and Medicaid statutes to require SNFs  and NFs by requiring alternative energy sources (for example, generators and adequate fuel to power them) for 96 hours post-disaster. Sanctions for non-compliance are monetary penalties, including increased penalties if a resident dies as a result of the facility's non-compliance. The bill includes a loan provision and a prioritization plan.

In addition to this federal legislation, Florida is also going to take up the issue of making backup generators mandatory in its 2018legislation session.

Stay tuned.

 

The bill, H.R. 4704, the Nursing Home Comfortable Air Ready for Emergencies (CARE) Act, would:

  • Codify the federal Emergency Preparedness rule that went into effect November 15, 2017 for nursing homes.
  • Mandate that facilities have in place an alternate source of energy capable of powering heating, ventilation, and air conditioning (HVAC) systems following a natural disaster for at least 96 hours.
  • Increase civil money penalties for facilities found out of compliance with CMS Requirements of Participation, including authorizing civil monetary penalties up to $100,000 for non-compliance resulting in a resident’s death.
  • Direct the Secretary of HHS to review facilities based on the Emergency Preparedness (EP) rule and publish the findings on the Nursing Home Compare website.
  • Create a loan fund for smaller facilities, or those serving more low-income residents, to come into compliance. Facilities must have a monthly rate of less than $6,000 for private rooms, or have fewer than 50 beds, to qualify.
  • Require states to prioritize nursing homes in the same manner as hospitals are prioritized in All-Hazards Public Health Emergency Preparedness and Response Plans, and to include in those plans information on how utilities plan to ensure that nursing homes return to functioning as soon as practicable following a disaster.

January 3, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations | Permalink

Friday, December 15, 2017

Getting to Know More about the National Center for Law and Elder Rights

Are you familiar with the National Center on Law and Elder Rights? If you are an academic teaching courses about any aspect of elder law, disability law, Medicare or Medicaid, you will want to know more about this resource.  If you are working in a legal services organization that represents older clients or disabled adult clients, you will want to now about this resource.  If you are a young lawyer and just handling your first case involving home-based or facility-based care for older persons who are can't afford private pay options,  you will definitely want to know about this resource.  In fact, if you are a long-time lawyer representing families who are struggling to find their way through an "elder care" scenario,  you too might benefit from an educational "tune up" on available benefits.  And the very good news?  This is a free resource. 

The National Center on Law and Elder Rights (NCLER) was established in 2016 by the federal Administration for Community Living. The new entity is, in essence, a partnership project, with the goal of providing a "one-stop resource for law and aging network professionals" who serve older adults who need economic and social care assistance. Justice in Aging (formerly the National Senior Citizens Law Center) which has primary offices on the east and west coast is a key partner, working with the American Bar Association's Commission on Law and Aging, the National Consumer Law Center (NCLC), and the Center for Social Gerontology (TCSG). Attorneys at these four NCLER partners provide substantive expertise, including preparation of materials available in a variety of formats, such as free webinars on a host of hot topics.  The Directing Attorney is Jennifer Goldberg from Justice in Aging and the Project Manager is attorney Fay Gordon.  

It strikes me that a very unique way in which NCLER will be a valuable resource is through what the offer as "case consultations" for attorneys and other professionals.  Think about that -- you may have long-experience with one branch of "elder law" such as Medicaid applications,  but you have never before handled an elder abuse case with a bankruptcy problem. Here is the way to potentially get experienced guidance! 

The web platform for NCLER offers a deep menu of resources, including recordings of very recent webinars and information on future events. I recently signed up for a January 2018 webinar program on elder financial exploitation and even though it is a "basics" session I can tell I'll hear about a new tools and possible remedies, as the presenters are Charlie Sabatino and David Godfrey.  I just watched a recording of another recent webinar and it was very clear and packed with useful information.  There is a regular schedule for training sessions -- with "basics" on the second Tuesday of every month and more advanced training sessions on the third Wednesday every month. 

I confess that somehow NCLER wasn't on my radar screen until recently (probably because my sabbatical last year put me about a year behind on emails -- seriously!) but I'm excited to know about it now.  

December 15, 2017 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Social Security, Web/Tech, Webinars | Permalink | Comments (0)

Wednesday, December 6, 2017

More on Nursing Home Issues

There have been a spate of articles of late regarding various issues surrounding nursing homes, and to some extent ALFs, arising from the hurricanes that hit Florida, Puerto Rico and Texas this past summer.  For example, Health News Florida reported that ALFs in Florida were facing a whopping $280 million for generators, Assisted Living Facilities Face $280 Million Tab For Generators     resulted from a cost estimate from Florida's Department of Elder Affairs, which "published a summary of the estimated regulatory costs on Wednesday after it received a three-page letter from the Joint Administrative Procedures Committee flagging potential problems with the proposed rule, initially published on Nov. 14. The estimated costs were published in the Florida Administrative Register."  The Florida Governor had issued an emergency rule shortly after Irma and the agency has now released a permanent rule to replace the emergency rule.  It looks as though there are over 4,500 ALFs in Florida, so it's understandable how the cost of compliance would reach that estimate. 

Meanwhile, Health News Florida was also reporting that the cost of generators for nursing homes is less than that estimate for ALFs but still high-$186 million high. Nursing Home Generator Costs Estimated At $186 Million     explains this figure, again an estimate, again resulted from the new rule with the total based on "estimates on information provided from the nursing home industry, which said the costs for a generator at a 120-bed facility would be $315,200. Using those figures, [the Florida Agency] estimated the average cost per bed at $2,626.66."

Then there's the story about the plan to recycle Rx meds from Pro Publica that Health News Florida picked up, More States Hatch Plans to Recycle Drugs Being Wasted in Nursing Homes     explains "how the nursing home industry dispenses medication a month at a time, but then is forced to destroy it after patients pass away, stop using it or move out. Some send the drugs to massive regional incinerators or flush them down the toilet, creating environmental concerns." Although there are a few programs to "recycle", most of the time leftover drugs are destroyed, some by flushing and others by incinerating.  Although in many states, donations of drugs is possible, the story explains "[m]any states ... don’t have programs that get the drugs safely from nursing homes to those who need them."

December 6, 2017 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations | Permalink | Comments (1)

Monday, December 4, 2017

Second Phase of Changes to Nursing Home Regs

Last year CMS released some changes to the Nursing Home regs, some of which went into effect last, year and others that recently went into effect this year in late November. Consumer Voice has released a summary of significant provisions that just went into effect. Federal Requirements of Participation for Nursing Homes: Summary of Key Changes in the Final Rule Issued September 2016 Phase 2, a 9 page document,  highlights both new rules and edited ones. For example, a new rule involves baseline care plans which have to be done within 2 days of admission. One of the modified rules going into effect involves nursing services: requiring not only enough staff, but with needed specific skills and competencies. There's also a new rule regarding nutrition staffing and competencies.

The last phase of implementation doesn't occur until Nov. 28, 2019. For a pdf of the summary of key changes, click here.

December 4, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0)

Thursday, November 30, 2017

Questions Arise With Evictions of Residents from Continuing Care (Life Plan) Communities

Recently I wrote about a high profile suit filed by AARP attorneys on behalf of residents at a California skilled care (nursing home) facility to challenge evictions.  

I've also been hearing about more attempts to evict residents from  Continuing Care Communities, also known as CCRCs or Life Plan Communities.   For example, in late 2016 a lawsuit was filed in San Diego County, California alleging a senior's improper eviction from a high-end CCRC.  The woman reportedly paid a $249k entrance fee, plus additional monthly fees for 15 years.  When she reached the age of 93, however, the CCRC allegedly evicted her for reasons unconnected to payment. The resident's diagnosis of dementia was an issue.  Following negotiations, according to counsel for the resident, Kelly Knapp, the case reportedly settled recently on confidential terms.  

Is there a trend?  Are more CCRC evictions happening, and are they more often connected to a resident's diagnosis of dementia and/or the facility's response to an increased need for behavioral supervision?  If the answer is "yes," then there is a tension here, between client expectations and marketing by providers.  Such tension is unlikely to be good news for either side.    

CCRCs are often viewed by residents as offering a guarantee of life-time care. Even if any promises are conditional, families would not usually expect that care-needs associated with aging would be a ground for eviction.  

The resident and family expectations can be influenced by pricing structures that involve substantial up-front fees (often either nonrefundable or only partially refundable), plus monthly fees that may be higher than cost-of-living alone might explain.  Marketing materials -- indeed the whole ambiance of CCRCs -- typically emphasize a "one stop shopping" approach to an ultimate form of senior living.      

In one instance I reviewed recently, the materials used for incoming residents explained the pricing with a point system. The prospective resident was told that in addition to the $100+k entrance fee, an additional daily fee could increase as both "medical and non-medical" needs increased.  A resident who "requires continual and full assistance of others . . . is automatically Level C" and billed at a higher rate. The graded components included factors such a need for assistance with "cognition, mood, or behavior," or "wandering."  All of that indicates dementia care is part of the "continuing" plan.

CCRCs, on the other hand, may turn to their contract language as grounds for an eviction. Contracts may have language that attempts to give the facility sole authority to make decisions about a resident's "level" of care.  Sometimes that authority is tied to decisions about "transfers" from independent living to assisted living or to skilled care units within the same CCRC, as the facility sees care needs increasing.  Even same-community transfer decisions can sometimes be hard for families. Complete evictions can be even harder to accept, especially if it means a married couple will be separated by blocks or even miles, rather than hallways in the same complex.

Continue reading

November 30, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Tuesday, November 21, 2017

New Publication: Old & Sick in America

Dr. Muriel Gillick, a Professor of Population Medicine at Harvard Medical School and the director of the Program in Aging at Harvard Pilgrim Health Care Institute had a new book.  Old & Sick in American: The Journey Through the Health Care System sounds like it hits the nail on the head, demonstrating topics that a wise consumer will need to recognize in order to navigate biases and weaknesses in the system. 

For a timely Q & A interview with the author, see How Older Patients Can Dodge Pitfalls Entrenched in Health Care System, published by California Healthline. 

November 21, 2017 in Books, Consumer Information, Health Care/Long Term Care, Medicaid, Medicare, Science | Permalink | Comments (0)

Tuesday, November 7, 2017

Check Out This New Report: New Guide on HCBS Settings Rule

The National Consumer Voice for Quality Long Term Care has issued a new guide, Understanding and Advocating for Effective Implementation of the Home and Community-Based Services Settings Rule.

Here's the introduction to the guide:

An important part of the practice of many elder law attorneys is assisting clients to receive and then benefit from Medicaid home and community-based services (HCBS). In March 2014, the Centers for Medicare and Medicaid Services (CMS) published the first ever regulations establishing standards for the settings in which HCBS are provided.1 These regulations will impact the services, quality of life, and rights of HCBS care recipients, as well as the environment in which they receive those services. Each state must develop and implement a plan for how it will come into compliance with the HCBS rules. The involvement of advocates, including elder law attorneys, in influencing the plan and monitoring its implementation is critical. This guide is designed to provide elder law attorneys with a better understanding of the HCBS settings rule and how they can advocate for a strong, effective system that achieves the spirit and intent of the rule.

The report notes that the reason for "HCBS Medicaid services is to be an alternative to institutional settings."  Thus, the rule's main reason "is to define the qualities that make a setting a home that is truly part of a larger community." Additionally, the rule is designed to confirm that those recipients really are part of their community. Last, but not least, the rule is intended to make the lives of these folks better as well as getting them more choice and protections. The report can be downloaded here.

 

 

 

November 7, 2017 in Consumer Information, Current Affairs, Discrimination, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid | Permalink | Comments (0)

Wednesday, November 1, 2017

LeadingAge: Hot Topics for Attorneys Who Advise Clients in Senior Housing and Service Industries

LeadingAge 2017 Hot Topics  for Lawyers Advising in Senior LivingThis week, the last session I was able to attend at LeadingAge's annual meeting was a panel talk on "Legal Perspectives from In-House Counsel."  As expected, some of the time was spent on questions about "billing" by outside law firms, whether hourly, flat-fee or "value" billing was preferred by the corporate clients.  

But the panelists, including Jodi Hirsch, Vice President and General Counsel for Lifespace Communities with headquarters in Des Moines, Iowa; Ken Young, Executive VP and General Counsel for United Church Homes, headquartered in Ohio; and "outhouse" counsel Aric Martin, managing partner at the Cleveland, Ohio law firm of Rolf, Goffman, Martin & Long, offered a Jeopardy-style screen, with a wide array of legal issues they have encountered in their positions.  I'm sorry I did not have time to stay longer after the program, before heading to the airport.  They were very clear and interesting speakers, with healthy senses of humor.

The topics included responding to government investigations and litigation; vetting compliance and ethics programs to reduce the likelihood of investigations or litigation; cybersecurity (including the need for encryption of lap tops and cell phones which inevitably go missing); mergers and acquisitions; contract and vendor management; labor and employment; social media policies; automated external defibrillators (AEDs); residency agreements; attorney-client privilege; social accountability and benevolent care (LeadingAge members are nonprofit operators); ACO/Managed Care issues; Fair Housing rules that affect admissions, transfers, dining, rooms and "assistance animals"; tax exemption issues (including property and sale tax exemptions); medical and recreational marijuana; governance issues (including residents on board of directors); and entertainment licensing.

Whew!  Wouldn't this be a great list to offer law students thinking about their own career opportunities in law, to help them see the range of topics that can come up in this intersection of health care and housing?  The law firm's representative on the panel has more than 20 lawyers in the firm who work solely on senior housing market legal issues.

On that last issue, entertainment licensing, I was chatting after the program with a non-lawyer administrator of a nursing and rehab center in New York, who had asked the panel about whether nonprofits "have" to pay licensing fees when they play music and movies for residents.   The panelists did not have time to go into detail, but they said their own clients have decided it was often wisest to "pay to play" for movies and videos.  Copyright rules and the growing efforts to ensure payments are the reasons.  

The administrator and I chatted more, and she said her business has been bombarded lately by letters from various sources seeking to "help" her company obtain licenses, but she wanted to know more about why.  For the most part, the exceptions to licensing requirements depend on the fairly broad definition of "public" performances, and not on whether the provider is for-profit or nonprofit.  

It turns out that LeadingAge, along with other leading industry associations, negotiated a comprehensive licensing agreement for showing movies and videos in "Senior Living and  Health Care Communities" in 2016.  Details, including discussion of copyright coverage issues for entertainment in various kinds of care settings, are here.   

November 1, 2017 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, October 10, 2017

Update on Florida Nursing Homes Post-Irma

A recent story reports on the Florida governor's statement calling on a state Constitution Revision Commission "to include provisions to protect residents of nursing homes and assisted living facilities." Scott Wants Nursing Home Rules In Constitution  reports that the Florida Governor is calling on the Commission "to consider adding 'permanent measures to put patient safety first.'" The constitutional amendments will be voted on in the November, 2018 election.

Meanwhile, the nursing home in Hollywood Florida where the deaths occurred filed suit challenging the state's moratorium on admissions as well as suspension from the state's Medicaid program. Broward Nursing Home Expands Lawsuit Against State  explains that the facility is seeking an injunction.

Stay tuned, there's a hearing on the facility's motion before the end of the month.

October 10, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, October 8, 2017

Emergency Readiness of SNFs

Justice in Aging has released a new issue brief focuses on the emergency readiness of nursing homes. Why Many Nursing Facilities Are Not Ready For Emergency Situations explains the situation in the executive summary: 

Nursing facility residents can be particularly at risk during natural disasters, as has been demonstrated yet again during Hurricanes Harvey, Irma, and Marie. The hurricanes resulted in death and injury in nursing facilities across the region, including twelve deaths in one Florida facility.

These deaths and injuries, and the desire to prevent harm in the future, have directed renewed attention on emergency preparedness. This issue brief discusses existing federal and state law, and makes recommendations to address gaps in current law.

Federal regulations on nursing facility emergency preparedness were issued in September 2016, and are scheduled for full implementation in November 2017. The regulations address five primary areas: emergency plans, facility procedures, communication plans, training and testing, and emergency power systems.

Unfortunately, these new regulations are inadequate to protect residents, in part because some of the regulatory standards are excessively vague, and in part because the regulations only govern nursing facilities and cannot mandate the broader coordination that would be advisable for community-wide emergency preparedness. Federal, state, and local governments should take additional steps to ensure adequate preparation for the natural disasters that inevitably will envelop nursing facilities and other health care providers in years to come.

The issue brief offers 7 recommendations including requiring  (1) emergency generators, (2) prior  coordination between government, healthcare providers and nursing homes, (3) arrangements for emergency evacuations, (4) local governments to keep the pertinent information "on an ongoing, community-wide basis", (5) governments or providers to create resources designed to help in drafting the emergency plan, (6) governments to mandate outside review of the facilities' emergency plans and (7) federal surveyors to impose appropriate sanctions for those facilities that don't comply with the emergency plan.

 

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

Thursday, September 28, 2017

"CHRONIC" - Senate Bill 870 Passes Senate With Bi-Partisan Support - Is It Significant?

On Tuesday, September 26, 2017, at the same time that there was much sound and fury, but no vote, on the Graham-Cassidy Senate effort to repeal Obamacare, the U.S. Senate quietly approved on a voice vote Senate Bill 870, titled "Creating High-Quality Results and Outcomes Necessary to Improve Chronic Care Act of 2017"or "CHRONIC Care" for short.  

The vote sends the bill on to the House for any next step of action. In press releases after the vote, sponsors welcomed Senate passage as a sign of bipartisan support for "strengthening and improving health outcomes for Medicare beneficiaries living with chronic conditions," noting:  

“This bill marks an important step towards updating and strengthening Medicare’s guarantee of comprehensive health benefits for seniors,” said [Oregon's Senator Ron Wyden,] the ranking Democrat on the Senate Finance Committee. “Medicare policy cannot stand idly by while the needs of people in the program shift to managing multiple costly chronic diseases,” Wyden said. “This bill provides new options and tools for seniors and their doctors to coordinate care and makes it less burdensome to stay healthy.”

The bill that passed the Senate on Tuesday was co-sponsored by Senate Finance Committee Chairman Orrin Hatch (R-Utah), as well as Sens. Johnny Isakson (R-Ga.) and Mark Warner (D-Va.)

Initial review of the modestly ambitious bill shows that if passed in full by the House, the legislation would extend by 2 years the "Independence at Home Demonstration program," now in its 5th year, with funding otherwise set to run out at the end of September.  Additional provisions address "telehealth" services and direct studies or accounting reports on Medicare Advantage plans.  

The Independence at Home Demonstration program seems worthy of additional operation and tracking, as at least on paper it trends towards what most people seem to want, i.e., better health care access while still at home, rather than waiting for facility-based services.  For more on preliminary outcomes from the Demonstration program, see "Corrected Performance Results" from Year 2, released in January 2017.  

On the other hand, it is difficult to resist the irony that a great deal of work seemed to go into crafting the acronym, "CHRONIC," which also happens to be the street name for "very high-quality marijuana."    

 My special thanks to my newest Dickinson Law colleague, Professor Matthew Lawrence, who comes to us with fabulous experience in health care law, for helping identify this active piece of legislation.  

September 28, 2017 in Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Social Security | Permalink | Comments (0)

Tuesday, September 26, 2017

Nursing Home Abuse: Reporting to Law Enforcement

Check out this updated policy brief, Policy Brief: Requirements for Reporting to Law Enforcement When There is a Suspicion of a Crime Against a Nursing Home Resident.  The Long Term Care Community Coalition  (as an aside, take a look at their cool url) released this updated brief with information about changes and 2017 updates

2017 Updates:
1. The potential fines for violations of the law are subject to adjustment for inflation. The fines indicated below are current as of September 2017.
2. New CMS guidelines for these (and other) requirements are in effect as of November 28,
2017. A summary of the guidelines for reporting can be found at the end of this brief. The
full federal Guidance can be found on the CMS website:

https://www.cms.gov/Medicare/Provider-Enrollment-and-
Certification/GuidanceforLawsAndRegulations/Downloads/Advance-Appendix-PP-Including-Phase-2-.pdf.

The overview explains that

The law broadens and strengthens the requirements for crime reporting in all long term care
facilities (including Nursing Facilities, Skilled Nursing Facilities, LTC Hospices, and Intermediate Care Facilities ...) that receive $10,000 or more in federal funds per year. The facility must inform the individuals covered under the law - its employees, owners,
operators, managers, agents, and contractors - of their duty to report any "reasonable
suspicion" of a crime (as defined by local law) committed against a resident of the facility. After forming the suspicion, covered individuals have twenty-four hours to report the crime to both the State Survey Agency and to a local law enforcement agency. If the suspected crime resulted in physical harm to the resident, the report must be made within two hours.

The brief explains the policy requirements and offers recommendations for consumers, state agency folks and long term care facilities. There is also a summary of the regs as well as definitions of commonly used words.

The brief can be downloaded as a pdf here.

September 26, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases | Permalink | Comments (0)

Monday, September 25, 2017

Video: Elder Law Attorney Uses Her Experiences to Explain Why Graham-Cassidy Repeal of ACA Isn't Right Answer

In a 3-minute YouTube video, Texas Elder Law Attorney Jennifer Coulter explains how the Affordable Care Act has affected her clients -- and herself -- in a positive way.  She makes a principled, compelling case for why "getting it right" on health care is far more important than political sound bites and rushed repeal measures.  

 

September 25, 2017 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Social Security | Permalink | Comments (0)

Tuesday, September 12, 2017

CMS Issues ABLE letter to State Medicaid Directors

CMS released State Medicaid Director Letter #17-002, Implications of the ABLE Act for State Medicaid Programs. The letter is designed to give guidance to state Medicaid programs on implementing ABLE. The letter includes background on the ABLE Act, explains who is eligible to have an ABLE account (including an explanation about the use of the word "qualified" in the statute)), how funds in the ABLE account are treated, contributions by the beneficiary or a 3rd party, distributions, post-Medicaid eligibility treatment of income  and transfers of ABLE money to a state and estate recovery.

September 12, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Wednesday, September 6, 2017

Medicaid 101 Webinar

The National Center on Law & Elder Rights  has announced an upcoming free webinar on Medicaid 101.

Here is the info about the webinar

Understanding Medicaid is a key to understanding the health and long-term care delivery system for older adults. Every year, over 6 million older Americans rely on Medicaid every year to pay for necessary health services. Over two-thirds of all older adults who receive long-term care at home or in a nursing facility, participate in the Medicaid program.

This free webinar, Legal Basics: Medicaid 101, will provide participants with a basic primer on the Medicaid program. It will explain the formation of Medicaid, Medicaid funding, key Medicaid protections, and Medicaid’s role in paying for health and long-term care for older adults.

The webinar is set for September 12, 2017 at 2:00 p.m. edt. To register, click here.

September 6, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Programs/CLEs, Webinars | Permalink | Comments (0)

Tuesday, September 5, 2017

Dual Eligibles and Medicare Coordination of Benefits

The National Center of Law & Elder Rights has announced an upcoming free webinar on Managed Care for Dual Eligibles and Medicare Coordination Programs on September 20, 2017 at 2:00 p.m. edt.  Here's a description of the webinar

Dual eligible individuals, those with both Medicare and Medicaid coverage, represent the most medically needy and costly population for both Medicare and Medicaid. In an effort to improve health outcomes and reduce healthcare spending, the Centers for Medicare and Medicaid Services (CMS) has been testing  financial alignment demonstrations in thirteen states to better coordinate and integrate care for dual eligibles.

What has been learned from these demonstrations so far? What are the take-aways for states that did not participate? This webinar will provide an update on these dual eligible demonstrations and review early evaluations of the programs. The webinar will also cover other recent efforts by CMS to address issues unique to dual eligible including issues around access to durable medical equipment.

Following the training, the audience will have a better understanding of the two models being tested in the demonstration, the fully capitated model and the managed fee-for-service model. They will also know about challenges and innovations during the almost four years since the demonstrations were launched and what further evaluation is being planned.

This is an advanced webinar. Legal service attorneys and aging and disability network professionals who work with dual eligibles are encouraged to attend.

Click here to register.

September 5, 2017 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, Medicare, Programs/CLEs, Webinars | Permalink | Comments (0)