Thursday, June 5, 2014

Is There A Private Right of Action Under the Nursing Home Reform Act?

Does a resident have a private right of action for violation of key provisions of the federal Nursing Home Reform Act? 

For example, federal Medicare/Medicaid Law specifies residents have certain "Transfer and Discharge Rights."  A certified nursing facility must permit each resident to "remain in the facility" and must "not transfer or discharge the resident" except for certain specified reasons, usually requiring 30 days advance notice.  But what happens if a facility ignores the limitations on acceptable grounds for transfer or discharge, including the 30 day notice requirement?

In its decision on May 12, 2014 in Schwerdtfeger v. Alden Long Grove Rehabilitation and Health Care Center, the federal district court in the Northern District of Illinois ruled that a discharge improper under federal law does not trigger a private statutory remedy.  As described in the clearly written decision, an abrupt transfer of the resident from the nursing home into a hospital followed the resident's "verbal dispute with a nurse" and another resident. While federal law permits transfers where there someone's safety or health is endangered, it does not appear from the decision that the nursing home claimed the verbal dispute created such a danger.  

Nonetheless, the court dismissed the resident's federal claim, concluding that the statutory language regarding discharge and transfer rights in Medicare and Medicaid law "does not manifest a 'clear and unambiguous' Congressional intention to create private rights in favor of individual nursing facility residents....  The NHRA [Nursing Home Reform Act] provides an administrative process in the state courts rather than a private remedy in federal court." 

In so ruling, the federal district court declined to follow the analysis of the Third Circuit in Grammer v. John J. Kane Regional Centers-Glen Hazel, 570 3d 520 (3d Cir. 2008), which as a "matter of first impression" ruled that the NHRA was sufficiently "rights creating" that it could trigger a cause of action regarding quality of care under Section 1983. 

My question, reflecting my teaching interests no doubt, is whether the nursing home's discharge was a breach of contract?  Most nursing home contracts I've reviewed either directly or indirectly "adopt" the protections of the NHRA as specific rights of their residents. (Indeed, I would be leery of any nursing home that did not do that.)  So, even if not a violation of federal law, wouldn't such a discharge breach the contract?  I suspect there is probably a court decision or law review article on this topic -- perhaps our readers have a citation?  

Of course, in seeking a right to sue directly under the NHRA, the resident was probably also seeking a right to claim attorneys' fees under the civil rights law; breach of contract claims, even if successful, may not make a claimant "whole" because of the likelihood of small consequential damages and no contractual right to seek attorneys' fees.  It is not clear from the Schwerdtfeger decision whether a breach of contract claim was alleged, although the federal court did "decline" to exercise supplemental jurisdiction over the plaintiff's "state law claims." 

June 5, 2014 in Consumer Information, Federal Cases, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 28, 2014

Dual-Eligibles Face Longer Stays & Higher Patient-to-Staff Ratios for Nursing Home Care

Led by Momotazur Rahman, Department of Health Services Policy and Practice at Brown University, researchers at Brown and Harvard have analyzed placements in nursing homes for Medicare-only and "dual-eligible" Medicare/Medicaid individuals. In their May 2014 study published (and linked here) in Medical Research and Review, they conclude that the low-income patients are more likely to be sent to lower quality (as measured by staffing radios) nursing homes.  Their abstract outlines their call for reform for referral processes:

"Medicare and Medicaid dual-eligible beneficiaries use more medical care and experience worse health outcomes than Medicare-only beneficiaries. This article points to a possible inefficiency in the skilled nursing facility (SNF) admission process, specifically that patients and SNFs are partially matched based on dual-eligibility status, and investigates its influence on patients’ SNF length of stay. Using a set of fee-for-service beneficiaries newly admitted for Medicare-paid SNF care, we document two findings: (1) compared with Medicare-only patients, dual-eligibles are more likely to be discharged to SNFs with low nurse-to-patient ratios and (2) dual-eligibles are more likely to become long-stay nursing home residents than Medicare-only beneficiaries if treated in SNFs with low nurse-to-patient ratios. We conclude that changes in the current SNF care referral process have the potential to reduce excess SNF utilization by dual-eligible beneficiaries and could help reduce spending by both Medicare and Medicaid."

One would hope that a corollary to reforming referral processes to "save money" would be improvements in the quality of life and care for dual-eligibles.  Additional analysis of the study is available at McKnights News. 

May 28, 2014 in Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Thursday, May 15, 2014

Analyzing State Trust Law and Federal Welfare Programs

Maryland Elder Law and Disability Law specialist Ron Landsman provides a thoughtful analysis of use of trusts, especially "special needs trusts," to assist families in effective managment of assets.  His most recent article, "When Worlds Collides: State Trust Law and Federal Welfare Programs," appears in the Spring 2014 issue of the National Academy of Elder Law Attorneys (NAELA) Journal.   Minus the footnotes, his article begins:

"'Special needs trusts,' which enable people with assets to qualify for Supplemental Security Income (SSI) and Medicaid, are the intersection of two different worlds: poverty programs and the tools of wealth management.   Introducing trusts into the world of public benefits has resulted in deep confusion for public benefit administrators. . . . The confusion arising from the merger of trust law with public benefits is sharply drawn in the agencies' [Social Security Administration (SSA) and Centers for Medicare and Medicaid Services (CMS)]  attempts to define what it means for a trust to be for the sole benefit of the public benefits recipient. Public benefits administrators have focused on the distributions a trustee makes rather than the fiduciary standards that guide the trustee.  The agencies have imposed detailed distribution rules that range from the picayune to the counterproductive and without regard, and sometimes contrary, to the best interests of the disabled beneficiary."

Drawing upon his experience in drafting trusts for disabled persons, Ron takes on the challenge of explaining how and where he sees the agencies' focus on "distribution" as misguided.  He contends, for example:

"The [better] task for CMS and SSA [would be] to use their authority to develop standards and guidelines that utilize, rather than thwart, competent, responsible, properly trained trustees as their partners in making special needs trusts an effective tool in serving the needs of people with disabilities.  If this were done properly, capable trustees would be the allies of the federal and state agencies in the efficient use of limited private resources.  Beneficiaries would live better, more rewarding lives to the extent that resources can make a difference, at a lower cost to Medicaid, with a greater possibility of more funds recovered through payback."

Ron is detailed in his critique of agency guidelines and manuals, and he provides clear examples of his "better" sole benefit analysis. 

May 15, 2014 in Estates and Trusts, Federal Cases, Health Care/Long Term Care, Housing, Medicaid, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 14, 2014

Frolik & Kaplan: "Elder Law in a Nutshell" (6th Edition!)

It occurs to me that what I'm about to write here is a mini-review of a mini-book. Slightly  complicating this little task is the fact that I count both authors as friends and mentors.

The latest edition of Elder Law in a Nutshell by Professors Lawrence Frolik (University of Pittsburgh) and Richard Kaplan (University of Illinois) arrived on my desk earlier this month. (As Becky might remind us, both are definitely Elder Law's "rock stars.")  And as with fine wine, this book, now its 6th edition, becomes more valuable with age.  This is true even though achieving the right balance of simplicity and detail cannot be an easy task for authors in the intentionally brief "Nutshell" series.  Presented in the book are introductions to the following core topics:

  • Ethical Considerations in Dealing with Older Clients
  • Health Care Decision Making
  • Medicare and Medigap
  • Medicaid
  • Long-Term Care Insurance
  • Nursing Homes, Board and Care Homes, and Assisted Living Facilities
  • Housing Alternatives & Options (including Reverse Mortgages)
  • Guardianship
  • Alternatives to Guardianship (including Powers of Attorneys, Joint Accounts and Revocable Trusts)
  • Social Security Benefits
  • Supplemental Security Income
  • Veterans' Benefits
  • Pension Plans
  • Age Discrimination in Employment
  • Elder Abuse and Neglect

The authors describe their anticipated audience, including "lawyers and law students needing an overview of some particular subject, social workers, certain medical personnel, gerontologists, retirement planners and the like."  Curiously, they don't mention potential clients, including family members of older persons.  I suspect the book can and does assist prospective clients in thinking about when and why an "elder law specialist" would be an appropriate choice for consultation.  This book is a very good starting place.

What's missing from the overview?  Not a lot, although I find it interesting that despite solid coverage of the basics of Medicaid, and even though it is unrealistic to expect exhaustive coverage in a mini-book, the authors do not hint at the bread and butter of many elder law specialists, i.e., Medicaid Planning.  Thus, there's little mention of some of the more cutting edge (and therefore potentially controversial) planning techniques used to create Medicaid eligibility for an individual's long-term care while also preserving assets that otherwise would have to be spent down. 

Modern approaches, depending on the state, may range from the simple, such as permitted use of assets to purchase a better replacement auto, to more complex planning, as in states that permit purchase of spousal annuities or use of promissory notes, allow modest half-a-loaf gifting, or recognize spousal refusal.  Even though the federal Deficit Reduction Act of 2005 succeeded in restricting assets transfers to non-spouse family members, families, especially if there is a community spouse, may still have viable options.  Without appropriate planning the community spouse, particularly a younger spouse, may be in a tough spot if forced to spend down to the "maximum" permitted to be retained, currently less than $120,000 (in, for example, Pennsylvania).  See, for example, a thoughtful discussion of planning options, written by Elder Law practitioners Julian Gray and Frank Petrich.    

Perhaps the Nutshell omission is a reflection of the unease some who teach Elder Law may feel about the public impact of private Medicaid planning?  

May 14, 2014 in Advance Directives/End-of-Life, Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, Social Security | Permalink | Comments (0) | TrackBack (0)

Thursday, May 8, 2014

National Senior Citizens Law Center Shares Advocates' Guide

The National Senior Citizens Law Center (NSCLC), drawing upon the nonprofit firm's experience in successful advocacy about access to benefits, is sharing its recommendations on how to help individuals obtain Medicaid funding for Home and Community Based Services (HCBS).  The guide is titled "Just Like Home: An Advocate's Guide to Consumer Rights in Home and Communit Based Services." The authors, Eric Carlson, Hannah Weinberger-Divack and Fay Gordon, explain:

"New federal Medicaid rules, for the first time, set standards to ensure that Medicaid-funded HCBS are provided in settings that are non-institutional in nature.  These standards, which took effect in March 2014, apply to residential settings such as houses, apartments, and residential care facilities like assisted living facilities.  The standards also apply to non-residential settings such as adult day care programs.

 

This guide provides consumers, advocates and other stakeholders with information regarding multiple facets of the new standards, including consumer rights in HCBS, and the guidelines for determining which settings are disqualified from HCBS reimbursement.  This guide is based on the federal rules and subsequently issued guidance, and will be updated as further information becomes available."

The twenty-page guide is free and downloadable -- more reasons to appreciate the hard-working folks at NSCLC. The NSCLC lawyers remind us that implimentation of HCBS is far from uniform from state to state.  Knowing what is happening outside your own state will increase the odds of successfullly advocating for change, and securing threshold, quality care in your state.

May 8, 2014 in Federal Cases, Health Care/Long Term Care, Medicaid, State Cases | Permalink | Comments (0) | TrackBack (0)

Friday, May 2, 2014

Congressmen introduce bill to expand PACE to some persons under 55

Congressmen Earl Blumenauer (OR-03) and Chris Smith (NJ-04) introduced HR 4543, the PACE Pilot Act, a bipartisan and budget neutral bill that would allow The Program of All-Inclusive Care for the Elderly (PACE) programs greater flexibilities to expand their successful model to care for people under age 55 who have special health risks.

PACE integrates Medicare and Medicaid benefits for members of our society who have some of the most serious and costly health care problems. The program seeks to keep people living in the community rather than in long-term care institutions. Currently, PACE is only available to individuals age 55 or older and who are certified by their state as being eligible for a nursing home level of care. Expansion of these programs will offer younger individuals with disabilities this same integrated, community-based option that supports their independence and quality of life.

“PACE has been a huge success,” said Blumenauer. “What we have realized is that there is a group of people out there who currently don’t qualify for PACE because of the age requirement, but would otherwise greatly benefit from the program due to serious medical conditions. This bill allows us to see how we can bring them into the fold efficiently and affordably.”

“PACE continues to provide patient centric care to many of the frailest members in our society, while enabling them to live in their homes and stay in their communities,” said Smith. “We know that all PACE participants are eligible for nursing home care, yet 90 percent continue to live at home. By removing the nursing home level of care requirement, we can help ensure that people have greater access to preventative services and treatments, thereby helping them maintain their quality of life.”

Currently, a total of 103 PACE sites in 31 states serve about 56,000 enrollees nationwide. A number of research studies show that beneficiaries enrolled in PACE had fewer hospitalizations and nursing home admissions, and lower mortality than similar beneficiaries who were not enrolled in PACE.

Read the bill.

May 2, 2014 in Federal Statutes/Regulations, Medicaid, Medicare | Permalink | TrackBack (0)

Monday, April 28, 2014

NSCLC Director Challenges U.S. House Budget's Harsh Impact on Poor Seniors

National Senior Citizens Law Center's Executive Director Kevin Prindiville analyzes Paul Ryan's Congressional budget numbers for the Huffington Post, highlighting the effect of proposed deep cuts on federal aid programs, cuts that would dramatically impact the nation's poorest seniors.  Kevin writes:

"The U.S. House of Representatives' recent approval of the Ryan budget resolution threatens programs that help poor seniors. In a disappointing vote, 219 House members gave their blessing to a budget that leaves country's older adults to struggle with less food, income, housing and care. The Ryan budget's path to poverty must not be allowed to happen. . . . By cutting essential programs that often make life manageable for those with limited means or resources, the Ryan budget will lead to poverty numbers among seniors the nation hasn't seen since the Depression." 

Kevin then outlines specific terms of the House plan to cut $5 billion from SSI, $732 billion from Medicaid, as well as additional cuts to Meals on Wheels and food benefit programs.    

The NSCLC, a nonprofit law firm with offices on both sides of the country, is a watchdog for the nation's low income elderly, succeeding with tough-to-win cases where the nation's most at-risk seniors are adversely affected by often-hidden changes or procedural traps in Social Security, Medicare and Medicaid programs.  Additional information on NCSLC's advocacy is available on their website, along with a calendar of events including the April 29 free webinar on "Understanding and Impacting Implementation of New Medicaid Home and Community-Based Services Rules."

April 28, 2014 in Federal Statutes/Regulations, Medicaid, Medicare, Programs/CLEs, Webinars | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 22, 2014

Fraudulent Transfer Laws and Nursing Home Claims

In some instances where a resident of a nursing home fails to qualify for Medicaid, the question may involve a transfer of a nonexempt asset by the resident or by someone (usually a family member) acting in place of the resident.  If the nursing home is not then paid privately, a debt is incurred. Depending on the specific reasons for a ruling of ineligibility, the nursing home, as an unpaid creditor, may be motivated to challenge the transfer as "fraudulent."  This in turn may trigger application of the Uniform Fraudulent Transfer Act (UFTA), as adopted in the specific state. 

Along that line, there is a new article, "Reconsidering the Uniformity of Uniform Fraudulent Transfer Act," by Steven Boyajian, Esq., published this month in the American Bankruptcy Institute Journal.  The article outlines proposed amendments to the UFTA currently under consideration:

"The UFTA has been adopted in 43 states, Washington D.C., and the U.S. Virgin Islands, and has not been specifically amended in the 30 years since it was drafted. Despite the UFTA's admonition that it 'shall be applied and construed to ... make uniform the law with respect to subject of [the UFTA] among states enacting it,' portions of the UFTA have been subject to conflicting interpretations by courts nationwide....

 

Amendments being considered by the Drafting Committee proposed to resolve the conflicting judicial interpretations of the following issues:  (1) the effect of § 2's presumption of insolvency if a debtor was generally not paying its debts as they become due; (2) the standard of pleading and proof applicable to a claim that a transfer was made or obligation incurred 'with actual intent to hinder, delay, or defraud any creditor'; and (3) the allocation of burdens with respect to the elements of a claim to avoid a constructively fraudulent transfer or obligation."

In outlining the proposals, the author emphasizes the continuing nature of the discussions about UFTA proposals.  One of the cases cited as part of the discussion is a nursing home collection case, Prairie Lakes Health Care System v. Wookey, 583 N.W. 2d 405 (S.D. 1998). 

Pennsylvania also has a case involving intepretation of a UFTA claim in the context of a nursing home collection matter.  In Presbyterian Medical Center v. Budd, 832 A.3d 1066 (Pa. Super. Ct. 2003), a nursing home plaintiff turned to Pennsylvania's filial support law as an alternative to a claim under UFTA, thereby permitting potential recovery against an adult child, without proof of fraud required. 

April 22, 2014 in Housing, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 15, 2014

Social Security Administrators Announce Cessation of "Old Debt" Collection Intercepts

The Social Security Administration announced on Monday that it is halting its practice of "Treasury Offsets" to recover debts reported to be 10 years or older.  This decision comes just three days after the Washington Post's front page account of intercepts that targeted IRS income tax refunds going to children of alleged debtors. As reported in today's Washington Post: 

“"I have directed an immediate halt to further referrals under the Treasury Offset Program to recover debts owed to the agency that are 10 years old and older pending a thorough review of our responsibility and discretion under the current law,' the acting Social Security commissioner, Carolyn Colvin, said in a statement.

 

Colvin said anyone who has received Social Security or Supplemental Security Income benefits and 'believes they have been incorrectly assessed with an overpayment' should contact the agency and 'seek options to resolve the overpayment.'”

The Washington Post reported that after its first article, "many hundreds of taxpayers whose refunds had been intercepted came forward and complained to members of Congress that they had been given no notice of the debts and that the government had not explained why they were being held responsible for debts that their deceased parents may have incurred." 

Hmm.  It seems that it is the intercept notice procedures that may be the focus of reexamination by the SSA, rather than giving up on the authority granted by Congress in 2008 to recover "stale" debts.  Plus, it is unclear whether SSA will  explain its theory for seeking recoveries against children of debtors.  

April 15, 2014 in Federal Cases, Federal Statutes/Regulations, Medicaid, Social Security | Permalink | Comments (0) | TrackBack (0)

Friday, April 11, 2014

Catch-Up Friday: Furor Over Filial Support, Mutual Responsibility & Related Laws

It is Friday and time for a catch-up on recent law review articles.  I posted last month on Memphis Professor Donna Harkness' article on filial support laws, but she is not the only one with recent publications analyzing the seemingly renewed interest in enforcement of such laws around the country and the world.  Here are highlights from recent comments and articles (minus those pesky footnotes):

"The Parent Trap: Health Care & Retirement Corporation of America v. Pittas, How it Reinforced Filial Responsibility Laws and Whether Filial Responsibility Laws Can Really Make you Pay," Comment by Texas-Tech Law Student Mari Park for the Estate Planning & Community Property Law Journal (Summer 2013):

"Texas should join the other twenty-eight states that already have a filial responsibility statute. Placing the duty of support on able family members first is a centuries-old obligation that has managed to survive into the present day despite opposition. While filial responsibility may seem harsh, it is simply making families care for each other. With the number of indigent elderly quickly rising, long-term care costs are likely affecting many families. Instead of ignoring the issue and hoping the government will shoulder this burden, maybe it is time for families to step up and take responsibility." 

"Filial Responsibility: Breaking the Backbone of Today's Modern Long Term Care System," Article by Elder Law Specialist Twyla Sketchley and Florida State Law Student Carter McMillan for the St. Thomas Law Review (Fall 2013): 

"The costs of long term care are staggering  and a solution must be found for this crisis. However, mandatory filial responsibility is not the answer. Enforcement of filial responsibility in the modern long term care system is unsustainable and ineffective. Filial responsibility has been recognized since the Great Depression as ineffective in providing for the needs of elders. Scholars have recognized that families provide care, not out of legal obligation, but personal moral obligation, and do so at great sacrifice. Enforcement of filial responsibility in today's long term care system burdens those who are the least able to shoulder the additional burden. Based on the value and the consistency of the care provided by informal caregivers, informal caregiving is the one piece of the long term care system that is working. Therefore, the solutions to the long term care financing system must encourage and support the informal caregiving system[,] not add additional, unsustainable burdens."

"Intestate Succession for Indigent Parents: A Modest Proposal for Reform," Comment by Toledo Law Student Matthew Boehringer for the University of Toledo Law Review (Fall 2013):

"Filial support statutes have already laid the groundwork and rationale behind adults supporting their dependents and should provide a convenient outlet for a government looking to reduce spending. Society will inevitably find more parents dependent on support from their children. Consequently, more of the elderly population will find that avenue of support estopped should that child die and without a means of familial support.  A modest reform of intestacy laws will address this situation and smooth over inconsistencies between different applications of the same purpose. The burden on the estate should not be excessive because the decedent was already providing for the elderly parent before death. Moreover, probate courts will already know the facts of the case and, thus, are in the best position to provide an equitable treatment for all parties dependent on the decedent. This modest proposal offers little harm but much benefit for some of the weakest of society."

In addition to the above articles addressing obligations that may run from adult child to parent, an article on "Who Pays for the 'Boomerang Generation?' A Legal Perspective on Financial Support For Young Adults," by Rutgers-Camden Law Professor Sally Goldfarb for the Harvard Journal of Law and Gender, analyzes the practical obligations assumed by many single parents, often women, to support adult children who are not yet self-sustaining.  Professor Goldfarb observes that a "financially struggling single mother who provides support for her adult child is at heightened risk of becoming an impoverished elderly woman."  She proposes:

"Instead of urging mothers to 'just say no' to financially dependent adult children, a better approach would be to ensure that the burden of financial support for young adults is distributed more equitably.... Divorced, separated, and never-married mothers of financially dependent young adults are in a position of derivative dependency. If they cut their financial ties to their adult children, they jeopardize the children's financial security. If they don't cut those ties, they jeopardize their own. A solution that safeguards the well-being of both mothers and young adults is urgently needed. In the absence of widely available public programs to meet the needs of young adults, the most obvious solution is to divide the cost of supporting them fairly between both parents...[as she explains in greater detail]."

Don't hesitate to write and let me know if I have missed your recent article addressing filial support laws or related concepts.

April 11, 2014 in Ethical Issues, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)

Monday, April 7, 2014

Causation Proof Needed for Breach of Contract Claims Against "Responsible Parties" in Nursing Home Cases

We have another interesting appellate decision from Connecticut on the question of personal liability of an individual who signed an agreement as a "responsible party" when admitting his parent to a nursing home.  The opinion is in Meadowbrook Center, Inc. v. Buchman, issued by the Connecticut Court of Appeals with a decision date of April 8, 2014. 

The majority of the three judge panel concludes that the son who signed the agreement cannot be held liable, based on the evidence -- or rather lack of evidence -- in the record.  Although the evidence establishes the son failed to provide all information requested by the state Medicaid department following his mother's application for Medicaid, and therefore breached duties he assumed as a "responsible party" under Section IV of the nursing home agreement, the majority concludes he cannot be held liable because there "is no evidence in the record...indicating that, had the defendant [son] complied with his obligations under the agreement, [the nursing home] would have received any Medicaid payments." 

In other words, the nursing home proved breach, but not causation of damages, even though "the parties stipulated...that if the department granted Medicaid benefits to the defendant's mother, the department would have paid the facility $47,561.18."  The ruling focuses on that "if," noting: 

"The testimonial evidence submitted to the court demonstrated, on the one hand, that submitting the proper information to the department merely triggered a review of the resident's eligibility and, on the other hand, the submission of such information was not a guarantee of approval to receive such benefits.... [A]n eligibility services supervisor at the department...testified that the department could not determine whether an applicant qualified for Medicaid absent a review of the applicant's financial information, which was not furnished to the department in the present case. As the defendant notes in his appellate brief, the plaintiff did not ask Leveque 'if, based upon the defendant's testimony regarding the assets maintained by [his mother], he had an opinion regarding whether ... [she] would have qualified for [such] benefits.' In addition, the record before us does not indicate that the plaintiff was prevented from presenting the proper financial documentation, expert testimony, or other evidence that would have otherwise established the resident's likelihood of approval, nor has the plaintiff in this appeal directed our attention to any such evidence."

There is a complicated history to third-party liability issues in nursing home contracts, especially in Connecticut.  As readers of our Blog may recall, last year the Connecticut Supreme Court declined to hold a signing family member liable for costs of the parent's care, where that individual did not have a Power of Attorney or other authority to apply for Medicaid.  See "Nursing Home Contracts Revisited: The Nutmeg State Adds Spice," commenting on Aaron Manor, Inc. v. Irving, 57 A.3d 342 (Conn. 2013).  Further, as we note in that post, Connecticut made significant changes to its Medicaid laws effective in October 2013, as a result of a series of nursing home cases involving third-parties.  In certain circumstances, Connecticut now seeks to impose statutory liability on individuals who are either transferors or transferees, connected to the resident's ineligibility for Medicaid because of disqualifying transfers.

The Meadowbrook decision is also well worth reading for anyone interested in the related but separate concepts of contract law and promissory estoppel. 

Further, in a separate concurring opinion, a third judge concludes that the nursing home agreement should not be construed as imposing liability unless the "responsible party" has been shown to have misappropriated the resident's resources, because without that personal fault, the responsible party agreement becomes a "guaranty," prohibited by federal Medicaid law. The majority, however, "strongly" rejects that analysis.  We'll keep our eyes open to see if the Meadowbrook case goes to the Connecticut Supreme Court.

When I first began analyzing "responsible party" liability in nursing home contracts, I became convinced the contracts drafted by many facilities created a minefield of problems.  In some instances, the providers seem to intentionally blur the lines of responsibility for third-parties.   On the one hand, facilities "need" agents to sign for new residents who are often lacking capacity to contract.  So the admissions office points to the "no personal liability" language in the agreement signed by the third-party.  On the other hand, if something does go wrong with the Medicaid application, that same facility will often be quick to point out that it is the third-party signer's obligation to fix the problem, or face potential personal liability. 

The nursing homes, of course, whether for profit 0r nonprofit, are not in the business of providing free care. 

The last ten years of litigation have only increased the importance for individuals to understand the significance of nursing home agreements.  Individuals may want legal advice from specialists in state Medicaid law before signing the agreement; further they may need to seek legal help again if there is any hiccup in the Medicaid application process. After the Meadowbrook case, I think it is safe to say care facilities will be better prepared to prove causation of damages.     

April 7, 2014 in Health Care/Long Term Care, Housing, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, March 31, 2014

Downstream Consequences of Under-the-Table Pay for Elder Care

A few weeks ago, I posted the account of one family's struggle to find competent care for aging parents.  Eventually they were referred to a team of two women who did provide good care, but who insisted on being paid in cash.  I later learned that one person expected an additional "fee" for "managing" the arrangement.  The family felt trapped, although the crisis was cut short when the parent died. 

More recently, I read another family's story, where a non-family member provided proper senior care in exchange for "cash," and this time the arrangement lasted for several years.  Eventually, however, the cared-for-individual's savings were exhausted, and her increasing health needs meant a nursing home was inevitable.  But how to apply for Medicaid?  Any review of bank records that accompanies a Medicaid application would show large, regular cash withdrawals from the elder's accounts, totaling more than two hundred thousand dollars.  With no W-2s or other documentation of the use of that cash, would the state agency treat the transactions as gifts creating ineligibility for Medicaid?  Would an affidavit or testimony by a family member be enough to satisfy the agency?

A group of experienced attorneys brainstormed the options in this fact pattern and raised a host of additional practical questions, including why the family had not sought help from an attorney or accountant at the outset of the arrangement. I suspect part of the answer was the family was operating in "survival" mode -- trying to solve a crisis with temporary help -- and failing to realize the potential for it to become long-term.  In the meantime, their loved one bonded with the individual caregiver who either would not or could not be paid on the books.  One lawyer observed that this fact pattern demonstrates why "Elder Law" needs better visibility and understanding by the public, as elder law attorneys can help prevent this legal nightmare from occurring.

During the brainstorming, someone provided a useful link to "Risks of Hiring Caregivers Under the Table: Why It Can Be Dangerous...." by Melanie Haiken from Caring.com.

For more detailed guidance, IRS Publication 926, the Household Employer's Tax Guide, is remarkably straight forward, if still probably intimidating for the average person. 

March 31, 2014 in Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (1) | TrackBack (0)

Saturday, March 29, 2014

Department of Labor Offers Guidance on FLSA and Shared Living Arrangements

The Department of Labor recently posted a Final Rule that changes how the Fair Labor Standards Act is interpreted for domestic service.  Of special interest is how the Rule impacts shared living programs under Medicaid.

The Department of Labor has also created guidance to assist stakeholders in determining whether an entity paying a direct care worker through a shared living arrangement is required to comply with the FLSA’s minimum wage and overtime requirements. The guidance also describes how certain FLSA principles apply to shared living arrangements. 

These changes become effective January 1, 2015.

March 29, 2014 in Federal Statutes/Regulations, Housing, Medicaid | Permalink | TrackBack (0)

Friday, March 28, 2014

Failure of Consideration and Promises to "Care for Grandma for the Rest of Her Life"

This semester I'm teaching Contracts, which always provides interesting opportunites to introduce "Elder Law" concerns in a traditional course.

This week I offered a not-so-hypothetical fact pattern, where Grandmother deeds house to Grandchild, in exchange for Grandchild's "promise to care for Grandma for the rest of her life."  Whenever I use this hypo, I pick one of a number of reasons the agreement does not work out as planned, such as the individuals don't get along with each other, grandchild gets pregnant or ill, etc.  This week's reason was "Grandma needs more specialized care" but cannot afford it because she's given away her primary resource. Grandchild doesn't want to sell the house, now that it is "hers," and she doesn't want to take out a mortgage. House

I ask the students to brainstorm Grandmother's options.  Almost always, someone suggests Medicaid, and we talk about whether Medicaid will provide adequate assistance and whether there are potential barriers to eligibility for public benefits, such as the five-year look back period. 

Students sometimes suggest Grandmother is subject to "undue influence," which if proven would be grounds for potential rescission.  Good job!  Except that I am usually careful in my hypo not to make Grandchild overtly manipulative.  And in truth, many of these arrangements begin more because of the desires of the aging individual, than because of any greed on the part of the younger person. We also explore "incapacity" and "duress" as possible grounds for rescission.

This week, students also suggested "failure of consideration" as grounds for rescission.  There is an interesting line of cases, perhaps a hybrid of Property and Contract law, that treats "support deeds" as a specific analysis, potentially justifying relief. Examples include:

  • Gilbert v. Rainey, 71 SW. 3d 66 (Ark. Ct. App. 2002), permitting mother to rescind deed for failure of consideration, and admitting mother's parol evidence to show daughter promised life care in exchange for the conveyance of the home, to show that conveyance was not a completed gift;
  • Frasher v. Frasher, 249 S.E. 2d 513 (W.Va. 1978), granting cancellation of deed from grandparents to grandchildren, on the grounds that where discord arises between the parties to a "support deed" between an aged grantor and a younger family member, the property should be restored "if it can be done without injustice" to the younger family member. 

After class was over, some of my students stopped by to chat, offering variations on the hypothetical, sometimes from examples within their own extended families.  In both of the sample cases above, the court attaches special meaning to the concept of "support deeds" going from older to younger generation, but most of the cases along this line are fairly old.  The fact that my students were offering modern variations on the fact pattern suggests there may be good reason to revisit this area of the law. 

Perhaps any resurgence in this topic is another sign of our "aging" times. So, that leads to my question, does your state recognize failure of consideration, tied to "support deeds," as grounds for rescission of a conveyance?

March 28, 2014 in Cognitive Impairment, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid | Permalink | Comments (2) | TrackBack (0)

Tuesday, March 18, 2014

Job Opportunity: Medicaid Policy Analyst at Families USA

Families USA is a national nonprofit, non-partisan organization dedicated to the achievement of quality, affordable health care and coverage for all Americans. We bring the voice of consumers in federal and state health policy debates, with a strong focus on the needs of low-income and vulnerable populations. Families USA is seeking a Medicaid Policy Analyst who will provide strategic input into the development and assist with the implementation of the organization’s work on Medicaid and the Children’s Health Insurance Program. The Medicaid Policy Analyst will report to the Medicaid Program Director. We are looking for someone with a deep understanding of the Medicaid and CHIP programs, the ability to write about technical policy issues in an accessible manner, and excellent analytical skills.

Responsibilities

  • Produce content related to Medicaid and CHIP, including but not limited to: reports, issue briefs, fact sheets, technical analyses, emails, blogs, webinars and other materials.
  • Provide technical assistance and strategic guidance to state and national health care advocates in conjunction with other Families USA staff.
  • Follow and report on emerging policy and political issues on Medicaid and CHIP and recommend appropriate organizational response.
  • Read and analyze federal regulations and guidance and write comments, sometimes in collaboration with other colleagues.
  • Collaborate with colleagues to incorporate health equity into organization’s Medicaid and CHIP work.
  • Help develop messaging, field press calls, and make public presentations on Medicaid and CHIP issues.
  • Represent the organization at national coalition tables on Medicaid and CHIP issues.

An ideal applicant would possess these qualifications

  • At least three to five years experience working on the Medicaid or CHIP program.
  • Strong understanding of Medicaid and CHIP and how the two programs relate to the Affordable Care Act.
  • Strong understanding of federal and state rules governing Medicaid, with a particular focus on eligibility, enrollment, and financing.
  • Excellent analytical skills.
  • Excellent communication skills—both oral and written, including the ability to write about technical policy issues in an accessible manner.
  • Strong organizational skills and an ability to work on multiple projects at the same time.
  • Ability to collaborate with other staff to complete a project.
  • Commitment to social justice.
  • Some travel for presentations, training, and consultations with state and local advocates will be required.

How to Apply 

Send a cover letter and resume by email to careers(at)familiesusa.org and include “Medicaid Policy Analyst” in the subject line. The salary will be commensurate with experience. Families USA offers a generous benefits package, including excellent health insurance, life and long-term disability insurance benefits, and generous vacation, sick leave, and holiday schedules. Families USA is an equal opportunity employer.

March 18, 2014 in Medicaid, Other | Permalink | TrackBack (0)

Professor Donna Harkness: "What Are Families For? Re-evaluating Return to Filial Responsibility Laws"

Donna_HarknessDonna Harkness, clinical professor of law and director of the Elder Law Clinic at the University of Memphis Cecil C. Humphries School of Law, has a new article on filial support laws in the most recent issue of the University of Illinois's Elder Law Journal.  In "What Are Families For? Re-valuating Return to Filial Responsibilities Laws,"  she concludes: 

"Despite their long history, filial responsibility laws have clearly failed to remedy existing needs. The lack of uniformity in filial responsibility laws, the difficulty and cost of enforcement, along with the fact that such laws provide no coverage to those elder Americans that have no adult children to look to for support, render them a limited response at best. In addition, to the extent that filial responsibility laws are enforced, evidence indicates they would be destructive to family ties and have the counterproductive effect of further eroding and destabilizing the network of support available to elders.

 

Furthermore, by focusing solely on economic support, filial responsibility laws do not address the fundamental need that all persons, and most especially the vulnerable elderly, have to be supported by caring relationships. To the extent that the institution of the family, however defined, is the key to ensuring that such relationships exist, it behooves us as a society to strengthen and foster family ties through policy initiatives that reward caring relationships."

 

March 18, 2014 in Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)

Monday, March 17, 2014

Student Comment on Expansion of Medicaid Estate Recovery

From 3L student Katie L. Summers at my own law school, Penn State Dickinson,  a recently published Penn State Law Review comment titled "Medicaid Estate Recovery: To Expand, or Not to Expand, That is the Question."  Here is a taste, from the abstract:

"To recoup some of the costs of Medicaid, the states are required to implement a Medicaid estate recovery program.  There are certain mandated requirements, but the reach of the recovery program is primarily left to the discretion of the states.  Pennsylvania recently contemplated expanding its Medicaid estate recovery program, but the proposed changes were not enacted.  This Comment provides an overview of Medicaid estate recovery in Pennsylvania by exploring the background of Medicaid, Medicaid estate planning, and Medicaid estate recovery generally.  In addition, this Comment examines the arguments for and against Medicaid estate recovery.  Finally, this Comment recommends the creation of a system that expands Medicaid estate recovery in Pennsylvania, while retaining certain protections for the deceased Medicaid recipient’s heirs."

March 17, 2014 in Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 26, 2014

Follow up--CRS Reports on Medicaid, Medicare, and Related Issues

Following up on Becky's post of Feb. 25 regarding some recent CRS Reports--I'm using a number of CRS reports in a class I am designing for Valparaiso's new health management and policy master's program.  These include:

Medicare, A Primer  Download Medicare Primer CRS

Medigap: A Primer Download Medigap CRS

Medicaid, An Overview (referenced by Becky) Download CRS Medicaid an Overview

Medicaid Coverage of Long Term Services and Supports Download Medicaid LTC CRS

Health Care Fraud and Abuse Laws AffectingMedicare and Medicaid: An Overview Download Fraud and Abuse CRS

Medicare Secondary Payer:Coordination of Benefits Download Fraud and Abuse CRS

Overview of Private Health Insurance Provisions in the Patient Protection and Affordable Care Act (ACA) Download Private Health Insurance ACA CRS

CRS reports aren't generally made available to the public, but I have had great luck over the years in obtaining them simply by contactiing one of the authors and requesting a copy.

February 26, 2014 in Legal Practice/Practice Management, Medicaid, Medicare | Permalink | TrackBack (0)

Friday, February 21, 2014

Nonprofit Continuing Care Communities: Exempt from State & Local Taxes?

As introduced in an earlier post, Continuing Care Retirement Communities (CCRCs, also sometimes operating as Life Care Communities or LCCs) are frequently organized and operated as 501(c)(3) entities, exempt from federal income taxes.  However, in several states, authorities have opposed exemption from state or local taxes, especially real estate taxes.  The campuses of high-end CCRCs can be tempting targets for revenue-hungry local governing units.

Pennsylvania has been a hotbed of such challenges, with the latest ruling issued in Albright Care Services v. Union County Board of Assessment, decided by the Commonwealth Court, an intermediate court of appeals, on January 29, 2014.  In Pennsylvania, the question of exemptions from real estate taxes depends on at least two sets of criteria, including (A) proof of operation as an "Institution of Purely Public Charity" or IPPC, and (B) "parcel reviews," to determine whether individual components of property are "actually and regularly used for the identified charitable purposes."  

The irony is an operation can be sufficiently "charitable" in nature to qualify for exemption from federal income taxes (and thus usually state income taxes) but not so "charitable" as to qualify for state exemptions that demand more rigorous proof of allegiance to mission. 

In Albright, the Commonwealth Court affirmed findings that the company, operating two CCRCs, qualified as an IPPC, thus distinguishing recent rulings that denied real estate exemptions for two other nonprofit continuing care operations, Dunwood Village (2012) and Menno Haven (2007). The Court credited testimony by Albright's accountant on the question of whether the company donated a substantial portion of its services to residents, rejecting the county's argument the CCRCs were reaping a Medicaid "windfall."  

The Court also affirmed the finding that several of Albright's real estate parcels was used to support the charitable mission. It called the independent living facilities a "closer question," but ultimately concluded such units were operated as part of a "comprehensive care scheme" that advanced a unified charitable purpose, citing a 2007 Pennsylvania Supreme Court decision in Alliance Home of Carlisle v. Board of Assessment Appeals. It remanded for further findings on whether parcels containing a museum and flood plain properties were used to advance the CCRC's charitable purpose.  

The Albright decision was released as an "unreported panel decision" that may be "cited for its persuasive value, but not as binding precedent." The Albright decision on CCRCs follows a series of Pennsylvania cases arguing state constitutional implications of exemptions for real property, affecting everything from summer camps to hospitals and universities, including the 4-3 ruling by the Pennsylvania Supreme Court in Mesivtah Eitz Chaim of Bobov v. Pike County Board of Assessments (2012).  In some counties, nonprofits may feel under pressure to enter into "PILOTS," or negotiated agreements for "Payments in Lieu of Taxes," to avoid litigation over exemptions.

February 21, 2014 in Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Thursday, February 20, 2014

"Outside" Whistleblower in Senior Care Industry to Receive $5.7 Million

In a previous post, I reported on a senior care whistleblower case, where a court ruled that a former corporate officer, who was also the in-house counsel, cannot participate in a False Claims Act suit, if the information supporting the claim comes from privileged communications received in his role as an attorney.  The two other former executives of the company, non-lawyers, could have participated as qui tam plaintiffs; however the entire case was dismissed by the court as a sanction for improper disclosure of attorney-client privileged information.

Most whistleblowers are insiders, either current or former employees; however, that is not always true.  The "relator" (that's False-Claim-Act-speak for whistleblower) in a suit brought against RehabCare, Rehab Systems, and Health Systems, Inc. was the CEO of a competitor, Health Dimensions Rehabilitation, Inc., who first heard about a successful use of "referral fees" during a public conference call hosted by RehabCare. 

 "Pride goeth before a fall," as our mothers might say.  In this case, the CEO's research into the referral fees resulted in allegations the fees were intended to generate referrals of clients covered by Medicare and Medicaid, thus giving rise to alleged violations of the federal Anti-Kickback Act.  The defendants denied all allegations. 

In the RehabCare case, which settled earlier this year for a reported $30 million, the whistleblower, Health Dimensions Rehabilitation, Inc. is in line to receive about $5.7 million from the settlement, according to the U.S. Justice Department. 

Penn State Dickinson School of Law is hosting a half-day program examining "Whistleblower Laws in the 21st Century," on March 20, 2014Speakers include both academic scholars and experienced attorneys who have advised or represented parties in False Claims Act cases in health care, including "senior care." 

February 20, 2014 in Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)