Tuesday, August 2, 2016

Tough Talk about Health Care Fraud

McKnight's News is a publication for insiders in the long-term care industry, reaching professionals who operate nursing homes, extended care sites, CCRCs and more. John O'Connor, who has been with McKnight's for more than 20 years, recently published  a candid editorial about factors affecting health care fraud in the industry.  He writes:

[G]iven how easy it is to cheat these days, we probably shouldn't be terribly surprised that so many operators give in to temptation. That's especially the case when it comes to invoice preparations. 

 

Let's be honest: How hard is it to put a resident in a higher RUGs category than is probably accurate? Or to bill for therapy services that were not actually delivered? Or to have therapists working overtime doing services that never should have occurred in the first place? And that, my friends, is just the tip of the proverbial iceberg.

 

Throw in stiff competition, incentives that reward upcoding, a dearth of interested investigators and good old-fashioned human greed, and what we have here is a breeding ground for creative accounting.

For more, read "It's Time for 'The Talk' About Healthcare Fraud."  

August 2, 2016 in Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Thursday, July 28, 2016

ABA Family Law Quarterly Focuses on "Gray Divorces and Silver Separations"

This week my in-basket sported the latest copy of the Family Law Quarterly and it is a strong lineup of symposium authors writing on a range of issues connected to late-in-life marital woes.  The articles in the Spring 2016 issue include:

  • The Challenging Phenomenon of Gray Divorces, by Paula G. Kirby & Laura S. Leopardi
  • Representing the Elderly Client or the Client with Diminished Capacity, by Robert B. Fleming
  • The Battle for the Biggest Assets: Dissolution of the Military Marriage and Postdivorce Considerations for Aging Clients, by Brentley Tanner
  • Residence Roulette in the Jurisdictional Jungle: Where to Divide the Military Pension, by Mark E. Sullivan
  • Family Support, Garnishment and Military Retired Pay, also by Mark E. Sullivan
  • Premarital Agreements for Seniors, by Peter M. Walzer & Jennifer M. Riemer, and 
  • Financial Abuse of the Dependent Elder: A Lawyer's Ethical Obligations, by Jeanne M. Hannah

In my review of the articles, I would have liked to see more discussion of the potential expectations  of the couple about payment of their respective long-term care costs, especially as a party's carefully signed premarital agreement may prove to be irrelevant to the state's analysis of eligibility for Medicaid to cover long-term care.  In most states, authorities insist on counting assets of both halves of the couple, without regard to any premarital agreement.  This is where "elder law" attorneys can be of help to traditional "family law" attorneys in planning.  Compare this Elder Law Answers' discussion of "Five Myths About Medicaid's Long-Term Care Coverage."

July 28, 2016 in Estates and Trusts, Ethical Issues, Medicaid, Property Management, State Statutes/Regulations, Veterans | Permalink | Comments (1)

Sunday, July 10, 2016

Catastrophic Insurance for Long-Term Services & Supports?

In early June, the Urban Institute released a brief that examines whether  Catastrophic Insurance Improve Financing for Long-Term Services and Supports. The abstract explains

A catastrophic insurance program could improve the way long-term services and supports are financed. The program would require enrollees who need care to wait a few years before they could collect benefits, but then it would provide those benefits as long as necessary. Our modeling results show that such a program could reduce Medicaid spending and provide financial relief to hard-pressed states. It could also reduce out-of-pocket spending for families facing catastrophic costs and fund new services and supports. By setting aside funds to cover future spending, a catastrophic insurance program could also raise national saving.

As we well know, paying for long-term care is a challenge for many. As the authors note, "[c]urrently, most people with LTSS needs rely mostly on unpaid family caregivers for assistance. If they need more help, they generally pay out of pocket until they exhaust their financial resources and then turn to Medicaid. New financing approaches could combine public insurance for catastrophic LTSS costs with initiatives to promote private long-term care coverage for other expenses. Our projections suggest that these options could significantly reduce Medicaid spending and provide better financial protection for older people who develop LTSS needs."

Looking at the ways long-term care is financed by many, the authors consider whether an insurance model might be the answer

New LTSS insurance programs could provide better financial protection to people with disabilities; improve the care they receive; and reduce Medicaid costs, which are creating financial problems for many state governments. By setting aside funds today to cover future LTSS spending, new insurance programs could raise national saving. And they could provide families with stronger incentives to save by reducing reliance on Medicaid, which discourages saving because it only pays benefits to people with virtually no wealth outside of their home. The effectiveness of any new insurance program, of course, depends on its particular features, such as eligibility requirements, the size of the daily benefit, and the financing mechanism.

The authors examine a few models to gauge their workability and conclude

An LTSS catastrophic insurance program that requires enrollees with LTSS needs to wait a few years before collecting benefits but then extends those benefits as long as necessary could substantially improve the way LTSS needs are financed in the United States. Such a program could reduce Medicaid spending, providing financial relief to hard-pressed states. It would also reduce out-of-pocket spending for families facing catastrophic costs and fund new services for older adults with LTSS needs, although these impacts would be somewhat smaller than those from a similar-sized program that provided front-end, but time-limited, benefits. By setting aside funds today to cover future LTSS spending, a new catastrophic insurance program could raise national saving. And it could provide families with stronger incentives to save by reducing reliance on Medicaid, which discourages saving because it only pays benefits to people with virtually no wealth outside of their home. 

Program details need further analysis. We modeled only a few options, and alternative designs could have different effects. For example, a new insurance program could provide larger daily benefits, which would reduce Medicaid and out-of-pocket spending more than the plan we modeled but would also require more funding. Or new programs could require enrollees to wait even longer to receive benefits than the program we modeled, which would offset less Medicaid and out-of-pocket spending but cost less. Our research is only the first step in the analysis required to design new LTSS financing programs, but it illustrates the potential power of our simulation tool in demonstrating how new options can interact with existing programs.

 

July 10, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Thursday, July 7, 2016

Consolidation of Long-Term Services & Supports-What if?

Our good friend and prolific author, Professor Marshall Kapp, let us know about his most recent article, Speculating About the Impact of Healthcare Industry Consolidation on Long-Term Services and Supports.  The article is published as the lead article in volume 25, issue 2 of the Annals of Health Law.   Here is the abstract of the article

The current health industry consolidation movement promises to exert an important and powerful array of effects on numerous different population groups seeking or receiving health services in a variety of different health care settings. Particularly regarding the potential impact of health industry consolidation on individuals contemplating, seeking, or obtaining long-term services and supports (LTSS), little is yet known but much may be plausibly speculated. This article joins in that speculation, but attempts to advance the constructive consideration of the topic by offering some suggestions for a research agenda to investigate specific empirical questions about consolidation’s impact on LTSS and thereby generate evidence and knowledge that can be used to either reduce or prevent negative aspects of consolidation for LTSS, on one hand, or foster and facilitate the achievement of positive effects, on the other.

Professor Kapp concludes:

The current, and probably continuing, consolidation of health services providers, producers, and sellers of healthcare products, as well as third-party payers for health services and products, inevitably will exert a variety of impacts on healthcare consumers generally and within specific contexts. Actual and potential consumers of LTSS, as well as their families, are likely to be affected in unique ways, differing to a large extent depending on the way that respective groups of consumers now finance their own LTSS. Little significant data is available yet regarding such effects, but speculation nonetheless abounds. This article joins in this basically uninformed but plausible speculation exercise but, I hope, adds constructively to the discussion by suggesting the rudiments of a health services research agenda that leads eventually to evidence-informed public policy making and private sector conduct that optimizes consolidation’s impact on consumers’ interests in access to, affordability of, and quality received in the realm of LTSS.

Thanks Marshall for letting us know and congratulations on the publication!

 

July 7, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Tuesday, July 5, 2016

Special and Supplemental Needs Trust To Be Highlighted At July 21-22 Elder Law Institute in Pennsylvania

In Pennsylvania each summer, one of the "must attend" events for elder law attorneys is the annual 2-day Elder Law Institute sponsored by the Pennsylvania Bar Institute.  This year the program, in its 19th year, will take place on July 21-22.  It's as much a brainstorming and strategic-thinking opportunity as it is a continuing legal education event.  Every year a guest speaker highlights a "hot topic," and this year that speaker is Howard Krooks, CELA, CAP from Boca Raton, Florida.  He will offer four sessions exploring Special Needs Trusts (SNTs), including an overview, drafting tips, funding rules and administration, including distributions and terminations.

Two of the most popular parts of the Institute occur at the beginning and the end, with Elder Law gurus Mariel Hazen and Rob Clofine kicking it off with their "Year in Review," covering the latest in cases, rule changes and pending developments on both a federal and state level.  The solid informational bookend that closes the Institute is a candid Q & A session with officials from the Department of Human Services on how they look at legal issues affected by state Medicaid rules -- and this year that session is aptly titled "Dancing with the DHS Stars." 

I admit I have missed this program -- but only twice -- and last year I felt the absence keenly, as I never quite felt "caught up" on the latest issues.   So I'll be there, taking notes and even hosting a couple of sessions myself, one on the latest trends in senior housing including CCRCs, and a fun one with Dennis Pappas (and star "actor" Stan Vasiliadis) on ethics questions.

Here is a link to pricing and registration information.  Just two weeks away!

 

July 5, 2016 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)

Wednesday, June 15, 2016

Nebraska Mandates Protection for Health Care Whistleblowers

In a recent McKnight's News column, Registered Nurse Pam McKnally wrote an interesting and candid account of "What It's Like to Be a Nurse Whistleblower."  Her experiences with retaliation  -- indeed bullying-- after she complied with laws requiring to her report observations of improper use of narcotics in the workplace led her and others to advocate for changes in the law.

In April 2016, in response to the experiences of McKnally and others, Nebraska enacted changes to state law, prohibiting retaliation against whistleblowers and mandating confidentiality for the identities of anyone making reports of violations by "credentialed" health care providers. Nebraska Legislative Bill 750, amending Nebraska's law that governs a broad range of health care providers, specifies:

An individual or a business credentialed pursuant to the Uniform Credentialing Act shall not discriminate or retaliate against any person who has initiated or participated in the making of a report under the act to the department of [health and human services].  Such person may maintain an action for any type of relief, including injunctive and declaratory relief, permitted by law. 

Further, the law now provides that "The identity of any person making such a report [of suspected violations] or providing information leading to the making of a report shall be confidential" and further, "The identify of any person making a report, providing information leading to the making of a report, or otherwise providing information to the department, a board, or the Attorney General included in such reports, complaints or investigational records shall be confidential whether or not the record of the investigation becomes a public record."

Whether the changes to Nebraska law, especially in the absence of a specific statutory sanction for retaliation or breach of confidentiality, will be effective to address the backlash experienced by McNally will bear monitoring.  She cautions:

I resigned, as my work life was intolerable, and it was clear that I was about to get fired. The EOC investigated my claims. The costs in employee hours and attorney fees, plus fines for violations can be astronomical. Had the situation been handled differently by the Human Resource department, the outcome may have been much different.

 

It is time for employers to stop blaming and discrediting professionals who simply follow the law and advocate for themselves and their patients....

 

When nurses are happy they work hard. They are loyal and seek out constructive ways to help their organization deal with conflict. In long-term care, Medicare and Medicaid cuts mean money needs to be saved now more than ever. Keeping a business viable includes mitigating the need for attorneys and dealing with nurse turnover.

June 15, 2016 in Crimes, Current Affairs, Discrimination, Ethical Issues, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, June 8, 2016

Will President Obama be Remembered as a Leader in Fighting Healthcare Fraud?

The Office of Inspector General issues regular reports to Congress, and the most recent report indicates that for the period of October 1, 2016 to March 31, 2016,  the total amount of expected recoveries arising from allegations of healthcare fraud was $2.77 billion.  That number is "up" by a billion dollars over the first half of fiscal year 2016.  

Here's a link to the most recent OIG report and here's a link to a recent article about the numbers in McKnight's Long Term Care News

 

June 8, 2016 in Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Statistics | Permalink | Comments (0)

Monday, June 6, 2016

Family Assistance & HCBS Medicaid

Justice in Aging (formerly known to many of us as the National Senior Citizens Law Center) covered a timely and important topic in their May, 2016 Issue Brief. Voluntary Means Voluntary: Coordinating Medicaid HCBS with Family Assistance was authored by Eric Carlson, well know nationally for his work regarding residents of long term care facilities. The issue brief runs 8 pages. Here is the executive summary: 

When an older adult can no longer can live independently, and is eligible for Medicaid, he or she often qualifies for home and community-based services (HCBS) that enable the individual to stay at home, rather than move to a nursing facility or other health care institution. The same is true for persons with disabilities. HCBS are provided under a service plan; under federal Medicaid regulations effective since March 2014, those service plans cannot compel unpaid assistance by family members such as adult children.

As illustrated by Medicaid hearing decisions from Florida, however, state Medicaid programs (frequently through managed care organizations) often compel unpaid assistance from family members. The managed care organizations (MCOs) authorize service levels with the presumption that family members should be  providing a certain level of personal care assistance. This leads to a lower level of Medicaid-funded service hours, which in turn requires family members to provide assistance to cover the service gap.

One problem in Florida is a "medical necessity" definition that denies Medicaid-funded services to the extent that those services are provided for caregiver convenience. This definition has been cited by MCOs and hearing officers to justify reduced levels of services, even when the caregiver’s "convenience" is his or her need to hold employment outside the home. Furthermore, twelve other states also have a similar "caregiver convenience" provision in the state’s Medicaid medical necessity definition.

In Florida and across the country, Medicaid beneficiaries and their advocates should address this problem. Florida advocates have made some progress in this area, and the state now agrees that service authorizations should respect a family caregiver’s outside employment. The Florida experience suggests the type of advocacy that could and should be pursued in Florida and other states. In individual service requests and appeals, beneficiaries and advocates should forcefully assert the voluntariness requirement of the federal service planning regulations. On a systemic level, advocates should argue for the removal or revision of "caregiver convenience" provisions, and advocate for service authorization procedures that explicitly incorporate the voluntariness requirement.

This issue brief is a "must read" for all elderlaw profs, attorneys and other advocates.  A pdf of the issue brief is available here.

June 6, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Tuesday, May 10, 2016

Nursing Home Resident Evictions Increase for "Problem" Residents

Let's just start by saying the article I'm about to cite is a must-read for us. 

The AP did a story on May 8, 2016, Nursing homes turn to eviction to drop difficult patients. The article opens "Nursing homes are increasingly evicting their most challenging residents, advocates for the aged and disabled say, testing protections for some of society's most vulnerable...Those targeted for eviction are frequently poor and suffering from dementia, according to residents' allies. They often put up little fight, their families unsure what to do. Removing them makes room for less labor-intensive and more profitable patients, critics of the tactic say, noting it can be shattering." 

The AP did a study of data from the Long-Term Care Ombudsman Program and learned that complaints regarding involuntary discharges have increased by about 57% since 2000. "[Discharge] was the top-reported grievance in 2014, with 11,331 such issues logged by ombudsmen, who work to resolve problems faced by residents of nursing homes, assisted living facilities and other adult-care settings."  Why this increase in discharges? The article offers that the involuntary discharge often happens "because the resident came to be regarded as undesirable — requiring a greater level of care, exhibiting dementia-induced signs of aggression, or having a family that complained repeatedly about treatment, advocates say. Federal law spells out rules on acceptable transfers, but the advocates say offending facilities routinely stretch permitted justifications for discharge. Even when families fight a move and win an appeal, some homes have disregarded rulings."

The American Health Care Association offers an opposing view of the discharges, explaining that in some cases it is "lawful and necessary to remove residents who can't be kept safe or who endanger the safety of others, and says processes are in place to ensure evictions aren't done improperly."

The article also includes examples where a resident is admitted to a hospital and when ready to return to the nursing home, is refused readmission. Several cases are highlighted in the article, with experts from both sides of the issue offering opinions. The article also references staffing levels and the trauma encountered by residents who find themselves in a discharge situation.

Have your students read the applicable federal statute and then this article. I guarantee an interesting discussion.

May 10, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid | Permalink | Comments (0)

Tuesday, May 3, 2016

Chronically Ill or Disabled In South Dakota-Is A Nursing Home In Your Future?

The New York Times ran a story on May 2, 2016 that South Dakota is under investigation by the federal government for improperly placing many residents with disabilities in nursing homes instead of providing care in the community. South Dakota Wrongly Puts Thousands in Nursing Homes, Government Says reports that "the Justice Department said ... that thousands of patients were being held unnecessarily in sterile, highly restrictive group homes. That is discrimination, it said, making South Dakota the latest target of a federal effort to protect the civil rights of people with disabilities and mental illnesses, outlined in a Supreme Court decision 17 years ago." 

As the story notes, many individuals need the level of care provided by a nursing home, but others do not.  "But for untold numbers of others — with mental illnesses, developmental disabilities or chronic diseases — the confines of a nursing home can be unnecessarily isolating. Yet when patients seek help paying for long-term care, states often steer them toward nursing homes, even though it may not be needed."  The article discusses the Olmstead decision and the government's strategies in these cases to challenge the placement.

South Dakota responded that they have made progress but the federal government sees it as not enough, especially since this is not a recent situation. "In-home health aides can be less expensive than nursing homes because they do not provide unnecessary services. States, though, face a chicken-or-egg conundrum. Does money go to nursing homes because beds are often more readily available than in-home services? Or are there fewer in-home services because less Medicaid money is spent on them? And nursing homes have little financial incentive to encourage patients to seek in-home care...."

This article can be a great starting point for an interesting discussion with students.

May 3, 2016 in Consumer Information, Current Affairs, Discrimination, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Tuesday, March 22, 2016

LTC Insurance: More $ or Less Benefits?

Kaiser Health News ran a story on March 17, 2016 about long term care insurance policies. Long-Term Care Insurance: Less Bang, More Buck explains how one insured saw her premiums cost almost four times as much if she kept her same coverage. Although an important option for many middle-income Americans, it seems, from the article, that the industry has specific challenges facing it.

[I]insurers botched just about every aspect of the policies they sold in the early days of the industry, said Joseph Belth, a retired professor of insurance at Indiana University known as one of the insurance industry’s toughest critics. They underestimated how long people would live and how long they’d need nursing home care — but overestimated how many people would drop their policies and how much interest insurers could earn on the premiums they banked.

Hemorrhaging money, many insurers left the business. Those that remain are in financial trouble on their long-term care policies. They’re charging far more for new policies, and sharply raising the premiums of old ones.

Not as many companies are offering the coverage as once was and many policy holders may be facing a choice of increased premiums, reducing or dropping coverage. As well, the article notes that many folks don't know the limits of Medicare coverage for long term care.  Fewer people are purchasing the policies, but there are now some hybrid options on the market

Fewer people today are buying traditional long-term care insurance policies, which only adds to insurers’ financial woes. Some are considering newer “hybrid” products such as life insurance or annuities that provide a long-term care benefit, but they’re also expensive and some require a large up-front payment.

That’s why pressure is mounting for state and federal lawmakers to come up with ways to finance long-term care for millions of aging baby boomers. Policy proposals abound, such as requiring people to buy subsidized long-term care insurance, much as they now need to buy health insurance. Other ideas include creating a government-run catastrophic plan or allowing people to convert their life insurance policies to long-term care policies. But all of these would require legislative action, and lawmakers at the state and federal level have been slow to act because of the sheer scope of financing Americans’ long-term care.

March 22, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations | Permalink | Comments (1)

Sunday, February 28, 2016

Abandoned Nursing Home Residents?

Kaiser Health News (KHN) ran a story titled The Agonizing Limbo Of Abandoned Nursing Home Residents. The story focuses on the refusal of some California nursing homes to readmit residents after a hospital stay.  The story opens with a story of one resident who "had been living[in a nursing home] for four years... [and] the home refused to readmit him, even after being ordered to do so by the state. Nearly nine months later, [the resident] is still in the hospital."  It seems that these residents are trapped in a sort of limbo.

Nursing home residents are entitled to hearings under federal law to determine whether they should be readmitted after hospitalization. The state Department of Health Care Services holds the administrative hearings, but has said it is not responsible for enforcing the rulings.

But the state Department of Public Health, which oversees nursing homes, neglects to enforce the rulings and sometimes disagrees with them, according to advocates and court documents.

That leaves residents .... [even those] who won ... [the]  hearing .... with little recourse — and not many places to go. And since many nursing home residents have publicly-funded insurance, it means taxpayers are on the hook for hospital stays long after the patients are ready for discharge.

California Advocates for Nursing Home Reform (CANHR) in November, 2015 filed suit against California Health & Human Services on behalf of some of these residents with an upcoming hearing in March of 2016. The suit seeks "to require California to establish a hearing process that complies with federal law and to enforce the rulings." The defendant has filed a motion to dismiss.

February 28, 2016 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Tuesday, February 23, 2016

Stakeholders and Policymakers Collaborate on Proposals for Better Approach to Financing Long-Term Care

On February 22, 2016, a diverse collection of individuals, representing a broad array of stakeholders interested in long-term care, released their report and recommendations for major changes.  In the final report of the Long-Term Care Financing Collaborative (LTCFC) they propose:

•Clear private and public roles for long-term care financing

•A new universal catastrophic long-term care insurance program. This would shift today’s welfare-based system to an insurance model.

•Redefining Medicaid LTSS to empower greater autonomy and choice in services and settings.

•Encouraging private long-term care insurance initiatives to lower cost and increase enrollment.

•Increasing retirement savings and improving public education on long-term care costs and needs.

The full report is available here.  

ElderLawGuy Jeff Marshall wrote to supplement this post by providing details of the report, written by Howard Glecknan of the Utban Institute.  Thanks, Jeff!  

Members of the Collaborative included:

Gretchen Alkema, The SCAN Foundation; Robert Blancato, Elder Justice Coalition; Sheila Burke, Harvard Kennedy School; Strategic Advisor, Baker, Donelson, Bearman, Caldwell & Berkowitz; Stuart Butler, The Brookings Institution; Marc Cohen, LifePlans, Inc.; Susan Coronel, America’s Health Insurance Plans (AHIP); John Erickson, Erickson Living; Mike Fogarty, former CEO, Oklahoma Health Care Authority; William Galston, The Brookings Institution; Howard Gleckman, Urban Institute; Lee Goldberg, The Pew Charitable Trusts; Jennie Chin Hansen, immediate past CEO, American Geriatrics Society; Ron Pollack, Families USA; Don Redfoot, Consultant; John Rother, National Coalition on Healthcare; Nelson Sabatini, The Artemis Group; Dennis G. Smith, Dentons US LLP; Ron Soloway, UJA-Federation of New York (retired); Richard Teske (1949-2014), Former U.S. Health and Human Services Official; Benjamin Veghte, National Academy of Social Insurance; Paul Van de Water, Center on Budget & Policy Priorities (CBPP); Audrey Weiner, Jewish Home Lifecare, immediate past Chair, LeadingAge; Jonathan Westin, The Jewish Federations of North America (JFNA); Gail Wilensky, Project HOPE;Caryn Hederman, Project Director, Convergence Center for Policy Resolution; Allen Schmitz, Technical Advisor to the Collaborative, Milliman, Inc.

February 23, 2016 in Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, Retirement, Science, Statistics | Permalink | Comments (1)

Only Limited Authority as Health Care Agents? The Latest Grounds to Challenge Dreaded Arbitration Clauses in NH Cases

The New York Times offers another window into concerns about pre-dispute binding arbitration provisions that are routinely found in nursing home agreements.  This is a long-simmering war, with many battlefronts and tactical arguments, as documented in the article.  However, the article also focuses on a narrow group of cases where courts have rejected a binding effect for arbitration clauses signed by someone serving "merely" as a health care agent for the incapacitated resident. (I hope my Contracts course students this semester are reading this article!)  

The article offers an additional opportunity to consider the tensions between public policies on either side of the debate over "fairness" of arbitration as a forum for consumer claims:

Arbitration clauses have proliferated over the last 10 years as companies have added them to tens of millions of contracts for things as diverse as cellphone service, credit cards and student loans.. Nursing homes in particular have embraced the clauses, which are often buried in complex contracts that are difficult to navigate, especially for elderly people with dwindling mental acuity or their relatives, who can be emotionally vulnerable when admitting a parent to a home.

 

State regulators are concerned because the secretive nature of arbitration can obscure patterns of wrongdoing from prospective residents and their families. Recently, officials in 16 states and the District of Columbia urged the federal government to deny Medicaid and Medicare money to nursing homes that use the clauses. Between 2010 and 2014, hundreds of cases of elder abuse, neglect and wrongful death ended up in arbitration, according to an examination by The New York Times of 25,000 arbitration records and interviews with arbitrators, judges and plaintiffs.

 

Judges have consistently upheld the clauses, The Times found, regardless of whether the people signing them understood what they were forfeiting. It is the most basic principle of contract law: Once a contract is signed, judges have ruled, it is legally binding.

 

Mr. Barrow’s case [set for trial in Massachusetts] is pivotal because, with the help of his lawyers, he has overcome an arbitration clause by using the fundamentals of contract law to fight back. As is often the case when elderly people are admitted to nursing homes, Mr. Barrow signed the admissions paperwork containing the arbitration clause on his mother’s behalf.

 

Although his mother had designated Mr. Barrow as her health care proxy — someone who was authorized to make decisions about her medical treatment — his lawyers argued that he did not have the authority to bind his mother to arbitration.

For more, read Pivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract?

Our thanks to attorneys Karen Miller in Florida and Morris Klein in Maryland, plus Dickinson Law students Joe Carroll, Corey Kysor and Kadeem Morris in Pennsylvania for sending us the link to the NYT coverage.

February 23, 2016 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Statistics | Permalink | Comments (0)

Thursday, January 28, 2016

Home Care & The Fair Labor Standards Act

Earlier this month, CMS published a CMCS information bulletin with the subject, Options for Medicaid Payments in the Implementation of the Fair Labor Standards Act Regulation Changes .  This is a re-release of the informational bulletin originally published in early July of 2014. Why? Because this informational bulletin is intended 

to assist states in understanding how they may ament their current 1915(c) waivers and state plan (1905(a), 1915(i), 1915(j), and 1915(k)) personal care services to implement Fair Labor Standards Act (FLSA) changes in a timely way, and in understanding Medicaid reimbursement options that will enable them to account for the cost of overtime and travel time during the workday that are likely compensable as the result of the DOL home care final rule.

CMS stands ready to help by providing "technical assistance to states seeking to adjust Medicaid reimbursement and other program policies to appropriately support FLSA compliance in home and community based LTSS. Additionally, DOL is continuing to provide extensive, individualized technical assistance." The focus of the bulletin is on home-care services that are use "self-directed service options" but  the bulletin also notes "that FLSA implications also exist for services furnished through agency-delivered models."

 

January 28, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, January 20, 2016

Teaching an Elder Law Seminar This Semester?

Are you teaching an elder law this semester?  If so, and your students are interested in sample papers to help them think about approach, scope, organization and how to provide support for their thesis statements, I've found this batch of articles helpful, even though they are now almost 10 years "old."  

The nine short articles by law students (including two former students from my own law school) were published in a student journal following a competition sponsored by the National Academy of Elder Law Attorney (NAELA) and are nicely introduced by my Blogging collaborator, Becky Morgan.  They demonstrate an array of topics and writing styles, and thus are useful to discuss in a writing and research class. I'm sorry that the NAELA competition is no longer available to students, as was a very nice way for students to get further mileage from their classroom research on elder law topics, and helped encourage them to revise and polish drafts!

January 20, 2016 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, International, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, January 4, 2016

Long Term Care Insurance-the Choices Are Complex

The New York Times on December 18, 2015 ran an article about LTC insurance. Long-Term Care Insurance Can Baffle, With Complex Policies and Costs opens with this compelling statement: "[insuring] for long-term care is a lot like trying to cover the future financial impact of climate change. It’s a universal problem that looms large, is hard to predict and will be costly to mitigate."  The article provides a critical look at the need for long term care insurance and the hurdles that are faced by those considering the need for long term care.

[I]t is a notoriously confusing and not always reliable product. That’s why few people turn to such insurance. Some 70 percent of those over age 65 will require some form of long-term care before they die, but only about 20 percent own a policy.

Instead, millions of those who end up needing long-term care pay for it out of pocket or, after impoverishing themselves, turn to the government for support.

The article takes a look at the costs of the policies, when coverage kicks in, and the limitations of such insurance.  The article offers some suggestions for those considering such a policy and concludes with  some food for thought:

As if these questions weren’t difficult enough, there are also estate planning considerations. You may want to leave something to your heirs and not want to see your estate consumed by long-term care expenses in your final years.

Several newer products called hybrids add on long-term care benefits to life insurance and annuities that may address this concern. But they add even more layers of cost and complexity.

For those in such situations, experts advise consulting an elder law attorney and fee-only financial planner who doesn’t make money from recommending the policies. That’s the best way to receive an objective — and nuanced — evaluation on whether this product makes sense for you.

January 4, 2016 in Consumer Information, Current Affairs, Estates and Trusts, Health Care/Long Term Care, Medicaid | Permalink | Comments (1)

Thursday, December 17, 2015

Pennsylvania Issues Post-Zahner Operations Memo on "Evaluating Non-Qualified Annuities"

Following the Third Circuit's ruling in the Zahner case in September 2015, Pennsylvania's Department of Human Services recently issued an Operations Memo providing guidance on how the state will evaluate the effect on Medicaid eligibility of so-called "non-qualified" annuities purchased during the look-back period.   The Ops Memo #15-11--01, issued November 16, 2015, provides in part:

Prior to the Zahner decision, in order to be actuarially sound, an annuity had to have a payment term that was equal to the individual's life expectancy.  If the annuity was either shorter or longer than the annuity owner's life expectancy found on the Life Expectancy Tables in LTC Handbook Chapter 440 Appendix D, then the purchase price of the annuity was used to determine an ineligibility period for payment of LTC [long term care] services. 

 

Effective immediately, due to the Zahner decision, the definition of "actuarially sound" has changed.  Annuities will now be considered actuarially sound if the annuity payment term is either short than, or equal to, the owner's life expectancy.

It will be interesting to see "what happens next" in the world of Medicaid planning.  My thanks to Pennsylvania Elder Law attorney and all-round research guru Rob Clofine for sharing the link.

December 17, 2015 in Estates and Trusts, Federal Cases, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, December 7, 2015

The Costs of Dementia-Part Three

Money Magazine's final article in the series on the costs of dementia focuses on the costs in the final stages of the disease. Coping With the Costs of Dementia: The Final Stage discusses the costs and the options for caring for an individual in the final stage of this disease.

In the final stages of dementia, which typically last four to five years, the need for care intensifies. [One's] spouse eventually will require around-the-clock assistance with most activities of daily living. [One's] toughest decision: whether to try to continue caregiving at home or move [one's] loved one to an assisted-living facility or a nursing home. [One] may feel guilty at the prospect of putting someone [one] love[s] in “a home”—that’s common and understandable—but a setting where professionals are providing the intense level of care needed at this point is often the best path, especially if they’re trained in the needs of dementia patients. That said, it’s also the most expensive care option by far.

The article urges caregivers to take proactive action, suggests caregivers pick a nursing home with a memory care unit, get advice on the order in which to spend assets and start planning for the caregiver's own future.  "Caring for someone with dementia is emotionally exhausting and financially draining, but it comes with one particular satisfaction: knowing that you’ve done whatever you can to make the last years easier for someone you love."

December 7, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (1)

Sunday, December 6, 2015

The Costs of Dementia-Part Two

Money Magazine's second article on the costs of dementia focuses on the middle stage of dementia. Coping With the Costs of Dementia: The Middle Stage discusses a series of steps for the caregivers and family to take, not only for the present, but in positioning themselves for the final stage of the disease.  The article discusses a number of suggestions:

  • greater levels of care, including adult day care and respite care and recommends only hiring caregivers with experience in caring for individuals with dementia;
  • examine the terms of any long term care insurance policy, if the individual has one;
  • if the individual is a veteran, look into VA benefits;
  • examine the individual's and family member's investment portfolio; rearranging allocations to more conservative investments may be needed;
  • investigate a reverse mortgage;
  • caregivers should talk to employers about options; and
  • begin to research nursing homes.

December 6, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0)