Wednesday, February 18, 2015
A long-running investigation of a doctor in Illinois for Medicaid and Medicare fraud is coming to a close. Michael Reinstein, "who for decades treated patients in Chicago nursing homes and mental health wards," has pleaded guilty to a felony charge for taking kickbacks from a pharmaceutical company. As detailed by the Chicago Tribune, on February 13, Reinstein admitted prescribing, and thus generating public payment for, various forms of the drug clozapine, widely described as a "risky drug of last resort."
The 71-year old doctor has been the target of the state and federal prosecutors for months, and he's also agreed to pay (which is, of course, different than actually paying) more than $3.7 million in penalties. He may still be able to reduce his prison time from 4 years to 18 months, if he "continues to assist investigators."
The investigation traces as far back as 2009, as detailed by a Chicago-Tribune/ProPublica series that revealed he had prescribed more of the antipsychotic drug in question to patients in "Medicaid's Illinois program in 2007 than all doctors in the Medicaid programs of Texas, Florida and North Carolina combined." Further, the Tribune/ProPublica series pointed to autopsy and court records that showed that, "by 2009, at least three patients under Reinstein's care had died of clozapine intoxication." Reinstein's, and one assumes, the pharmaceutical company's, defense was that the drug could have appropriate, therapeutic effects for patients, beyond the limited "on-label" realm.
Assuming that the government ever sees a dime in repayment, from either the doctor or the drug company, my next question is what happens to that money? At a minimum, shouldn't there be review of the effect of the drugs on these patients, some of whom may have been administered the drug for years? We keep reading that the drugs are "risky," but shouldn't there be evidence of real harm -- or perhaps even benefit -- from the documented "off-label" use? Certainly, prosecutions for off-label drugs are understandable attempts to claw-back, or at least reduce, public expenditures. But isn't more at stake, including the search for relief or workable solutions for patients who are in distress?
In March 2014, for example, Teva Pharmaceutical Industries Ltd., the maker of generic clozapine, reportedly agreed to pay more than $27.6 million to settle state and federal allegations that it induced Reinstein to prescribe the drug. Recovering misspent dollars is important. But I also would like to see evidence of the harm alleged by the government -- or the benefit asserted by the defendants -- from the administration of the drugs. Isn't objective study of the history of these real patients a very proper use of the penalties?
February 18, 2015 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 10, 2015
As picked up by several news media sources, Pennsylvania's Office of Inspector General (OIG) released a statement on February 9, 2015 reporting that "from September 2014 through December 2014, [OIG] recovered more than $1.8 million in taxpayer funds from individuals who were ineligible to receive long term care benefits."
Further, OIG reported these actions resulting in "over $709,000 in cost savings for the same period. Cost savings represent future use of commonwealth funds that would have been expended for Long Term Care services on behalf of an ineligible individual."
The timing of this press release strikes me as interesting. I don't recall seeing a three-month report before, nor does the press release disclose any details about the number of "ineligible" individuals this report represents. The recent press release merely states:
"In some instances, individuals or their personal representatives fail to disclose to the commonwealth income and/or assets such as real estate, stocks, or pensions in order to qualify the individual for Medical Assistance benefits."
OIG makes an annual report on investigations and recoveries of all state funds, including long-term care. Pennsylvania's 2013-2014 Fiscal Year Annual OIG Report includes a statement that OIG "collected and cost avoided in excess of $9.9 million in long term care benefits." The conflating of recovery of "past" improper payments with "costs avoided" in the annual report makes it difficult to compare the more recent three-month report, covering the end of the calendar year, to determine whether it represents a significant change.
It is probably worth noting that the OIG head in 2014 was an appointee of outgoing Republican Governor Tom Corbett, while the new Pennsylvania Governor, with new appointments to make, is Democrat Tom Wolfe.
Wednesday, February 4, 2015
Part 2 of the provocative New America Media series on "Death of a Black Nursing Home," describes a pervasive, discriminatory impact by states in deciding how to use Medicaid funding for health and long-term care. In "Why Medicaid's Racism Drove Historically Black Nursing Home Bankrupt," Wallace Roberts writes:
"About 90 percent of Lemington’s residents were Medicaid recipients. The industry’s average, however, is 60 percent, so Lemington’s mission of providing care for low-income people from the area put it at a competitive disadvantage.
Lemington’s over-reliance on Medicaid was the principal reason its debt grew from a few hundred thousand dollars in 1984, to more than $10 million, including a $5.5 million mortgage on a new facility in 1984.
Pennsylvania’s Medicaid payments for nursing home reimbursement were too low to enable the home to hire enough trained staff. Lemington’s former human resources director, Kevin Jordan, noted that the home was “always scrambling to cover payroll” and spent lots of money on 'legal fees fighting the union.'”
The article details serious mistakes made by individuals in the operation of Leimington Home for the Aged, but also points to essential problems in Medicaid funding that doomed the facility to failure. The author calls for reforms, including a consistent, national approach to long-term care funding, to eliminate -- or at least reduce -- the potential for misallocation of money by states:
"Although the leadership of Lemington Home must bear the responsibility for those legal judgments and the fate of an important institution, the racist history imbedded in Medicaid’s rules for the past 80 years should share the brunt of the blame for bankruptcies at hundreds of long-term care homes largely serving black, latino and low-income elders.
One needed change would be to award nursing homes in African American, Hispanic and low-income neighborhoods serving large numbers of Medicaid recipients larger “disproportionate share payments.” Under the law, such homes receive additional reimbursements for serving a larger-than-usual proportion of very poverty-level residents. But the higher rate also doesn’t kick in unless a facilty has at least a 90 percent occupancy rate, which many homes like Lemington can’t easily reach. Rules relaxing that standard would bring badly needed revenue to vulnerable homes.
Congress could also require that all nursing homes accept a minimum number of Medicaid patients so as to spread the financial burden.
But to truly do the job, Medicaid should be federalized—taken out of the hands of state and local officials, many of whom use get-tough rhetoric in elections to stigmatize and punish often-deserving people...."
The full articles are interesting -- we will link to any future parts of this bold series.
February 4, 2015 in Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 3, 2015
This Blog has followed the complicated recent history of bankrupt Lemington Home for the Aged, in Pittsburgh, with posts here and here. New America Media, a national association of over 3000 ethnic media organizations, has begun an important, multi-part series examining the "impoverished history of race" in long-term care for persons of color. The Lemington Home becomes a case study. The series is titled The Death of a Black Nursing Home.
"[W]hat happened to Lemington is not uncommon. Researchers at Brown University found that more than 600 other nursing homes in African American, Hispanic and low-income neighborhoods also went bankrupt during this period.
Their study examined the closings of more than 1,700 independent nursing homes between 1999-2009 and found that those located in largely ethnic and low-income communities were more likely to have been closed, mostly because of financial difficulties.
Specifically, nursing homes in the zip codes with the highest percentage of blacks and Latinos were more than one-third more likely to be closed, and the risk of closure in zip codes with the highest level of poverty was more than double that of those in zip codes with the lowest poverty rate."
Observing that "Medicaid homes can't compete" successfully, the article examines reimbursement rates under Medicare and Medicaid and the disproportionate effect of underfunding on minority communities.
"The principal authors of the study, Vincent Mor and Zhanlian Feng, both of Brown at the time (Feng is now at the Research Triangle Institute), noted 'closures were more likely to occur among facilities in states providing lower Medicaid nursing home reimbursement rates.' That left these homes without the resources they needed to compete successfully in an industry experiencing an oversupply of beds and intensified competition....
While Medicaid reimbursement rates vary by state, they are always below Medicare’s reimbursement levels or the fees charged to people who pay for their own care. The demise of Lemington and other nursing homes in minority and low-income neighborhoods is a direct result of this flawed payment scheme. However, large for-profit nursing home chains, some of which are owned by private equity companies and real estate investment trusts, can maximize profits by using expensive and aggressive marketing practices to cherry pick the wealthier residents in a given area while reducing the number of their own Medicaid clients.
Medicaid’s payment structure also has impacted the quality of care in nursing homes with predominantly minority residents."
We will link to the next parts of the series as they become available.
Saturday, January 31, 2015
It strikes me that a lot of my posts this week about long-term care have been "bad news," especially regarding nursing homes. It is a good time for me to share a much happier view from a daughter who first wrote to me about her fears as an adult daughter -- with health care concerns of her own -- living 3,000 miles away from her father, who at 90+ was in crisis and needed daily help, but was unable to afford it.
Her dad had a local person as an agent, a long-time friend's child who held "power of attorney." But that individual seemed overwhelmed. When the daughter wrote to me, I encouraged her to talk to her father, who still had capacity. Four months later, the daughter wrote back to give the results, including the very good news that her father was happier. She gave me permission to share details here:
"Since last September ... I was able to get my father completely on Medicaid and everything went through well with his application, etc. He got accepted the first time! I hear that can be rare. Additionally, my Dad met with his attorney and revised his POA, making me his agent and allowing me to do many things, even from afar.
Dad's very happy now and quite healthy (at age 91) in his new skilled nursing home environment in Pennsylvania. Even from 3,000 miles away, I am still very connected to him, as well as the wonderful staff at the nursing home. My Dad is now 3rd generation of his family to stay at that same nursing home. Additionally, he now has the company of his youngest sister, my Aunt, who has been at the home for the last 10 years. They are together and enjoying each other's company every day."
A short time later, the daughter wrote again:
"I have such peace of mind, and heart, knowing this is the right place for Dad, plus, he has so much more socialization now and is no long isolated and all alone in his apartment where he was before. (I no longer lay awake every night worried about him with knots in my stomach.) Plus, I forgot to mention the facility has a resident dog on site, a golden retriever named 'Magoo,' and, boy, does he brighten everyone's day."
This daughter's words are an important reminder that the "right" place, including the right nursing home, can make dramatic improvement in the lives of older persons, especially where frailty and isolation are the concerns. Thank you, Patti, for sharing your "happier" news.
Postscript: Patti allowed us to share a photo of her and her father, and the story of their relationship is written in their smiles.
Tuesday, January 27, 2015
Republican chairs of the House Committee on Energy and Commerce and the Senate Finance Committee recently wrote to the head of Center for Medicare and Medicaid Services (CMS), demanding explanation for why 22 states and D,C. are "failing" to implement federal laws about Medicaid eligibility and asset transfer rules for Long Term Services and Supports (LTSS) benefits. They write:
"We are troubled to learn that many states have not implemented all of the eligibility and asset transfer requirements enacted by OBRA and DRA. Information provided to us by the Department of Health and Human Services' Office of Inspector General (OIG) shows that, as of November 2013, only 28 states reported they implemented all of the relevant provisions from these two laws. Thus, although it has been over 20 years since enactment of OBRA and nearly 10 years since DRA, the remaining 22 states and the District of Columbia have yet to comply with federal law. California, which accounts for 12 percent of Medicaid LTSS spending, reported that it has not implemented the majority of the relevant provisions. As a result, federal Medicaid dollars may be paying for care for individuals who are not eligible for coverage under federal law, which puts a strain on resources for those individuals who are eligible and in need."
The Chairmen ask for answers to a list of questions (by February 27), focusing on what action CMS is taking or will take to bring states "into compliance." For example, they ask "How is CMS ensuring that federal Medicaid dollars are not being used to support coverage for individuals ineligible for LTSS under federal law?"
Here is the legislators' full letter, addressed to Marilyn Tavenner at CMS, dated January 23, 2015.
For another perspective on potential disparities among the states in administering Medicaid eligibility rules for LTSS, see AARP's Public Policy Institute Report on "Access to Long-Term Services and Supports: A 50-State Survey of Medicaid Financial Eligibility Standards" released in September 2010.
This letter presents an interesting juxtaposition with the Armstrong case now pending in the Supreme Court. On the one hand, federal and state governments are arguing in court that there is no private standing to challenge "underfunding" of federally mandated Medicaid programs; on the other hand Congress seems to be demanding that CMS stop any potential for overfunding Medicaid beneficiaries.
Monday, January 26, 2015
In a major investigative report, The New York Times describes findings that nursing homes in counties throughout the state of New York are agressively seeking appointment of non-family members as guardians for residents of their facilities. The trigger? Unpaid nursing home fees.
Reporter Nina Bernstein uses the history of 90-year old Lillian Palermo to illustrate the practice, where a nursing home initiated a guardianship proceeding to displace her husband's authority as agent under a Power of Attorney, when disputes with her husband left unpaid bills, alleged to be "approaching $68,000."
NYT and researchers at Hunter College teamed to analyze the use of guardianships as a bill collection tool by nursing homes:
"Few people are aware that a nursing home can take such a step. Guardianship cases are difficult to gain access to and poorly tracked by New York State courts; cases are often closed from public view for confidentiality. But the Palermo case is no aberration,. Interviews with veterans of the system and a review of guardianship court data conducted by researchers at Hunter College at the request of The New York Times show the practice has become routine, underscoring the growing power nursing homes wield over residents and families amid changes in the financing of long-term care.
In a random, anonymized sample of 700 guardianship cases filed in Manhattan over a decade, Hunter College researchers found more than 12 percent were brought by nursing homes. Some of these may have been prompted by family feuds, suspected embezzlement or just the absence of relatives to help secure Medicaid coverage. But lawyers and others versed in the guardianship process agree that nursing homes primarily use such petitions as a means of bill collection -- a purpose never intended by the Legislature when it enacted the guardianships statute in 1993."
While, according to the NYT, at least one court has ruled such a "tactic by nursing homes is an abuse of the law," the increase of such suits highlights the payment dilemmas faced by facilities and families as Medicaid eligibility rules narrow and as the margin tightens for coverage of costs of care.
New York is not alone in seeing guardianship cases initiated by nursing homes. In Pennsylvania, attorneys retained by families or individuals have also sometimes challenged the practice, focusing on the use of facility-preferred guardians and the amount of fees added to the care bills in dispute.
National Senior Citizens Law Center, an important advocate for low income seniors in the U.S. since its inception in 1972, has announced a new identity, "Justice in Aging." But, don't worry, this change represents a deepening of their long-standing commitment (including a cherished role in training and education of senior advocates, including free webinars). As explained in news releases:
"The new name and accompanying 'look' will more accurately reflect the nature of our work, build on our legacy of impact, and open the door to engage more supporters and partners across the country. And it is a LOT easier to say and remember!
Our new name will be Justice in Aging. Our new tagline will be Fighting Senior Poverty Through Law.... Our new website will be www.justiceinaging.org. We will begin using the new name on March 2, 2015.... While our name is changing, our work will remain the same. As income inequality increases across the nation and the population ages, senior poverty is growing to unprecedented levels.... We still serve serve as a resource for advocates on important programs like Medicare, Medicaid, LTSS, Social Security and SSI."
We wish the hardworking staff of NSCLC -- or now JiA, perhaps? -- all the best as they roll out their new identity, and in their continuing commitment to advocating for seniors across the nation.
Thursday, January 22, 2015
Can Private Parties Sue to Challenge Underfunding of Medicaid-Care? Supreme Court Hears Oral Argument
Oral argument on Armstrong v. Exceptional Child Care Center before the U.S. Supreme Court on January 20 highlighted important issues of private standing to challenge funding under state-federal Medicaid programs. "The case raises the issue of whether Medicaid providers can challenge a state law in federal court on the basis that it violates the federal Medicaid Act and therefore is preempted by the Supremacy Clause of the U.S. Constitution," as summarized and explored by the Kaiser Family Foundation.
Additional commentary on the oral arguments is provided on Volokh Conspiracy, via the Washington Post.
Tuesday, January 20, 2015
The National Senior Citizens Law Center (NSCLC) has sent out the latest news on pending (but delayed) implementation of new rules affecting payment of wages for many home care workers. Here is the helpful update from NSCLC:
"A U.S. federal district court has struck down new rules that would have applied Fair Labor Standards Act standards, like payment of minimum wage and overtime, to most Medicaid home care providers. Historically, many personal care providers and other in-home assistants have been exempted from federal labor laws under the 'companionship services' exemption.
The US Department of Labor is likely to appeal the decision to the D.C. appellate court, so a final decision on the validity of the expanded FLSA regulations will take some time. In the meantime, however, the new regulations, which were supposed to start on January 1, 2015, will not take effect. Unless a state chooses otherwise, home care providers’ wages and hours will stay the same. For more details about the court decisions or the rule, visit http://www.dol.gov/whd/homecare/ or contact Hannah Weinberger-Divack."
Sunday, January 18, 2015
Following extensive hearings and related proceedings, including revision of an earlier proposed advisory opinion by the Florida Bar's Standing Committee, the Florida Supreme Court issued a per curiam opinion on January 15, 2015, addressing certain Medicaid planning activities, concluding that when performed by nonlawyers, they constitute the "unlicensed practice of law" (UPL), thereby leading to potential sanctions.
The ruling focuses on actions by nonlawyers who assist with one or more of the following activities leading up to an application for Medicaid: (1) drafting of personal service contracts, (2) preparation and execution of Qualified Income Trusts; or (3) rendering legal advice on implementation of Florida law to obtain Medicaid benefits. The Court expressly distinguished the "preparation of the application for Medicaid benefits" as being outside of its opinion, pointing to federal law as authorizing nonlawyer assistance in the application process.
The Elder Law Section of the Florida Bar was the petitioner seeking the advisory ruling.
In the detailed conclusion, the "harm and potential harm" from "unregulated" nonlawyers selling trust packages was outlined:
Wednesday, December 31, 2014
On November 14, 2014, the Ohio Court of Appeals affirmed a lower court's decision in a deceptively simple contract dispute. The question was whether a son, who was his mother's agent under a power of attorney, could be held personally liable for $8,700 incurred by his mother in nursing home costs. The ruling in Andover Village Retirement Community v. Cole confirmed the son's contractual liability.
When I first read about the case, I thought I would find another example of the often confusing use of "responsible party" labels for agents in a nursing home admission agreement, a topic I've written about at length before. However, the Ohio case was a new spin on that troublesome topic. According to the opinion, Andover Village actually presented two separate documents to the son at the time of his mother's admission. One document was an admission agreement that the son signed, pledging:
“When Resident's Responsible Person signs this Agreement on behalf of Resident, Resident's Responsible Person is responsible for payment to [Andover] to the extent Resident's Responsible Person has access and control of Resident's income and/or resources. By signing this Agreement the Resident's Responsible Person does not incur personal financial liability.”
The second document, titled "Voluntary Assumption of Personal Responsibility," was also signed by the son, but this time it stated, “I, Richard Cole, voluntarily assume personal financial responsibility for the care of Resident in the preceding Agreement.”
The court viewed the second document as the son's personal guarantee, and it was this document that triggered the court to find the son personally liable for his "voluntary" assumption of the obligation to pay costs not covered by Medicare or Medicaid.
The Ohio court leaves me with another question, not directly addressed in the decision. Did the son really make a knowing and voluntary decision to assume personal liability for costs, especially costs that can break most individual's piggy banks? Or, did the son sign a stack of papers he was told were routine and necessary for his mother to be admitted? Admissions to nursing homes are often made when everyone, the resident and the family members, is under stress.
At a minimum, I would like to think that a family's consultation with an experienced elder law attorney at the time of admission would have made a difference.
For facilities that are Medicare or Medicaid eligible -- and that is most nursing homes -- key federal laws, set forth at 42 U.S.C. §§ 1395i-3(c)(5)(A)(ii), 1396r(c)(5)(A)(ii) provide: “With respect to admissions practices, a skilled nursing facility must . . . not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility.”
I expect that an experienced elder law attorney would be familiar with this restriction on "mandatory" guarantees and would help the son see that for the nursing home to be compliant with federal law, any guarantee must be truly voluntary. Advice from an experienced elder law attorney would help to guard against the not-so-voluntary signing of a stack of papers that are presented as "necessary" to admit the resident. Perhaps a facility would refuse to admit the mother unless the son signs the "voluntary" agreement, but if that happens, it would be clear that the facility is violating the intention of federal law to protect individuals -- and families -- from waiving certain rights as a condition of admission or continued residence.
With that experienced lawyer's advice, a son could make a knowing and intentional decision to serve as his mother's contractual guarantor, and thus would be alert in advance to the ways that even small gaps can occur that are not covered by Medicare, Medicaid or private insurance. (Those small gaps can add up!) Alternatively, if the son is not willing or able to serve as his parent's guarantor, another facility might be the better choice.
In law school classes about elder law, we do teach Medicaid planning approaches, but frankly, that is usually a small part of any course. The majority of our time is spent on the abundant ways that individuals and families can be helped by an attorney who understands the full panoply of rights and obligations that attend growing older in the U.S. and beyond.
Hat tips to Pennsylvania attorney Jeffrey Marshall and Florida attorney Joseph Karp for alerts to the Ohio case.
Monday, December 29, 2014
Christopher Robb is in his final year at Westminster College in Pennsylvania and for his senior Media project he tackled "filial laws." His impressive work included researching the history of such laws and studying recent court cases in Pennsylvania. He interviewed and filmed a host of individuals from across the state who have experience with recent trends in use of filial support laws by nursing homes to seek payment from adult children for bills not satisfied by the resident's resources, insurance or Medicaid. Chris Robb's resulting 15 minute video is titled, "Am I My Mother's Keeper?" Thank you for sharing it with the Elder Law Prof Blog!
Thursday, December 18, 2014
The Centers for Medicare and Medicaid Services (CMS) recently published a proposed rule that would make equal treatment for same-sex marriages (recognized under state law) a condition for all providers or suppliers seeking federal funding. CMS also released interim guidance for long-term care surveyors, as part of the agency's implementation of the Supreme Court's decision in U.S. v. Windsor,
Comments to the prosed rule are due by February 10, 2015. The National Senior Citizens Law Center provides additional information regarding its advocacy on this important topic, and on the proposed regulations and policies on its Center website, here.
Friday, December 12, 2014
"Nonprecedential decisions" sometimes make me a little crazy. Talk about them? Ignore them? What if that's where all the action is happening on a tough topic?
This time I think it is important to report a nonprecedential decision, one of the few to emerge from the appellate courts in Pennsylvania in recent years where sons or daughters are not held liable under Pennsylvania's filial support law, and thus were not required to pay for the parent's nursing home care.
In the case of Rest Haven York v. Deitz, Case No. 426 MDA 2014, the Pennsylvania Superior Court issued a nonprecedential memorandum ruling on August 22, 2014. Mom resided in the plaintiff-nursing home for about two and a half years, and when she died there was an alleged unpaid bill of approximately $55k. No details are provided in the opinion about why that debt accrued or whether Medicaid was used for any payments. The amount is large enough to suggest something went wrong somewhere on the payment side of the ledger, but it also is not large enough to suggest that no payments were made.
The facility sued the resident's daughter, who was alleged to have "signed the admitting papers as agent under a power of attorney" executed by her mother. The complaint, filed three months after the mother's death, alleged breach of contract, implied contract, unjust enrichment, fraud, "and breach of duty to support" under Pennsylvania's filial support law, 23 Pa.C.S.A. Section 4603.
Daughter was granted summary judgment by the trial court, dismissing the entire suit. The only issue on appeal was whether the nursing home had "failed to provide evidence that could have allowed the trial court to declare [the mother] indigent." Indigency, an undefined term in the statute, is one element of Pennsylvania's filial support law.
The appellate court rejected the daughter's argument that indigency must somehow be declared or established by a judgment before a family member's support obligation can be triggered. However, the court also concluded that attaching a copy of the contract signed by the daughter, as agent for her mother, and attaching a copy of "overdue" charges on the mother's account did not suffice. Interestingly, the court then went on to offer a bit of a lesson on how nursing homes "could" prove their case -- so, a nonprecedential opinion with a moral?
"To present competent evidence to prove indigence, Rest Haven should have provided a bank statement or similar documentation attesting to [the mother's] financial condition."
In giving this lesson, the court cited two very precedential cases decided by the same court, Healthcare & Retirement Corp. of America v. Pittas (2012) and Presbyterian Medical Center v. Budd (2003).
As I often say to family members or lawyers who are startled to read about filial support law obligations, Pennsylvania appellate courts take this law very seriously when it comes to unpaid nursing homes. There are some defense strategies available, but a successful defense is not easy.
Saturday, November 29, 2014
On November 26, 2014, in Nay v. Department of Human Services, the Oregon Court of Appeals invalidated a 2008 attempt by the state to expand Medicaid estate recovery rules to reach assets conveyed prior to death by the Medicaid recipient to his or her spouse.
The court's ruling analyzes the portion of federal statutory law that permits, but does not require, states to expand Medicaid estate recovery programs to cover "any other real or personal property and other assets in which the [deceased] individual had any legal title or interest at the time of death... including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust or other arrangement." Analysis of this language, which was mirrored by Oregon statutory law, leads the court to conclude that some ownership interest at time death of the Medicaid recipient must be present to make the asset a valid target of Medicaid estate recovery:
"Therefore, we conclude that 'other arrangement' in the context of the definition of “estate” means that assets transferred from the deceased 'individual'—the Medicaid recipient—by operation of law on account of or occurring at the recipient's death are included in that definition. Thus, the 'including' clause in the federal permissive definition of 'estate' incorporates nonprobate assets that are transferred from the Medicaid recipient to a third party by operation of law or other mechanism, but in which the deceased Medicaid recipient retained legal title or 'any' interest at the time of his or her death."
"By including the 'interspousal transfer' text in the pool of assets from which the state can recover from the surviving spouse's estate, the rule includes assets that necessarily were transferred before the recipient's death. Because we have concluded that such predeath transfers are antithetical to the definition of estate as provided by federal and state law (requiring that the recipient have an interest in the property at the time of his or her death), we conclude that DHS's amendments of OAR 461–135–0835(1)(e)(B)(iii) relating to interspousal transfers exceeded its statutory authority granted by ORS 416.350 and 42 USC section 1396p, and we hold those provisions invalid."
Sunday, November 23, 2014
From Kaiser Health News, this report of "confusion, frustration and resistence," associated with California's first six months of efforts to move 500,000 low-income seniors and disabled persons into managed care:
"'The scope and the pace are too large and too rapid for what is supposed to be a demonstration project,' said Dr. William Averill, executive board member of the Los Angeles County Medical Association, which filed a lawsuit to block the project. 'We are concerned that [the project] is ill-conceived, ill-designed and will jeopardize the health of many of the state’s most vulnerable population – the poor, the elderly and the disabled.'
There is a lot riding on the pilot — the largest of its kind in the nation. The patients involved are among the most expensive to treat – so-called 'dual eligibles,' who receive both Medicare, the health insurance program for the elderly and disabled, and Medicaid, which provides coverage for the poor. Over the three years of the demonstration project, California is focusing on 456,000 of the state’s 1.1 million dual eligibles.
State officials acknowledge some transition problems but say the project will provide consumers with more coordinated care that improves their health, reduces their costs and helps keep them in their homes. In addition, officials estimate the program could save the state more than $300 million in fiscal year 2014-2015."
For more, read "California's Managed Care Project for Poor Seniors Faces Backlash," by Anna Gorman.
Friday, November 21, 2014
On November 19, attorneys representing families and the Commonwealth of Pennsylvania argued consolidated cases before a panel of the Third Circuit Court of Appeals, involving use of short-term annuities in connection with applications for Medicaid-funded care. The argument follows appeals from a January 2014 decision on summary judgment motions by the Western District of Pennsylvania in the case of Zahner et al. v. Commonwealth of Pennsylvania.
A key issue on appeal is whether use of "shorter" term annuities is permitted by the language of federal Medicaid statutes referring to actuarially-sound annuities, or whether such use automatically constitutes a transfer of assets for less than fair value, and thus is treated as a prohibited gift. HCFA Transmittal 64 is the subject of much of the very technical debate.
The jurists on the panel are Judge Theodore McKee (the male judge's voice on the recording), Judge Marjorie Rendell, and Senior Judge Dolores Sloviter (the softer voice on the recording). Interestingly, rather early in the argument, at least two of the judges interject to make the observation that "there is nothing wrong with Medicaid planning, per se," noting, rather, that the issue is the extent to which specific planning approaches have been directly addressed by federal law.
Listening to the oral argument in this case provides an opportunity for students in advanced legal studies on asset planning to consider cutting edge legal issues and policy concerns. The argument is also an opportunity for even first-year law students to discuss argument techniques, and to consider what does or does not work well with judges (and vice versa). It was a "hot" bench and there was a lot of interruption from both sides.
Wednesday, November 19, 2014
Earlier this month, Yale Law School hosted a conference marking the 50th anniversary of the passage of Medicare and Medicaid. The program speakers were encouraged to examine the precedents set by these two major programs, against the backdrop of recent health care reform initiatives. Videos from sessions on "The Law of Medicare and Medicaid at 5o" are now available to the public, including segments on:
- Medicare, Then and Now
- Historical Context, Legislation & Administration
- Policy Making and Innovation
- Health Law Federalism, Especially After NFIB
- Looking Ahead
In addition, the presentation by keynote speaker Ezekiel Emanuel, Vice President of Global Initaitives and Chair, Medical Ethics and Health Policy at the University of Pennsylvania is available.
The video segments, while interesting, may be a little difficult to sit through, as they are not edited, and some of the speakers are not using the microphones. Fortunately, Professor Allison Hoffman from UCLA School of Law and others have written a wonderful series of pieces, stemming from the Yale program sesssions, and the articles are posted on Health Affairs Blog.
Friday, November 14, 2014
The National Senior Citizens Law Center (NSCLC) is offering a free webinar on "Emerging Issues and Consumer Rights in Providing Medicaid LTSS through Managed Care."
Date and Time: Wednesday, November 19, 2014 2-3 p.m. Eastern time
Description: "This webinar will examine the critically important issue of consumer rights in the 28 states that have moved to Medicaid managed long-term services and supports (LTSS) systems. Additionally, it will evaluate emerging issues we've seen in certain states."
More information and registration here.