Wednesday, July 27, 2016
If your answer is no, you don't know a doctor who specializes in geriatric medicine, then take heart, you aren't alone. One would think, with the sheer number of baby boomers aging away, that there would be a number of doctors specializing in geriatric medicine. Kaiser Health Network (KHN) and West Virginia Public Broadcasting ran a story on July 13, 2016 about the lack of geriatricians. Few Young Doctors Are Training To Care For U.S. Elderly reports that West Virginia is 3rd in the country with a sizeable elder population, but only has 36 geriatricians practicing in West Virginia. It's not just West Virginia, though, who needs more geriatricians. "The deficit of properly trained physicians is expected to get worse. By 2030, one in five Americans will be eligible for Medicare, the government health insurance for those 65 and older."
The lack of geriatricians is not due to the lack of training programs in the U.S. "The United States has 130 geriatric fellowship programs, with 383 positions. In 2016, only 192 of them were filled." Why is this, you ask? According to the story, one reason may be the cost of a medical education and "they think that they need to get into something without the fellowship year where they can start getting paid for their work." An audio of the story is also available here.
Georgetown University's American Criminal Law Review recently hosted a symposium on health care fraud and one of the articles to come out of that program is by University of Alabama Law School Adjunct Professor James F. Barger, Jr. His article uses the 2013 criminal case of U.S. v. Kolodesh, which resulted in a "guilty verdict on all thirty five counts," to examine "the general trend of Medicare Hospice fraud enforcement actions." The author reports:
The vast majority of False Claims Act hospice cases in which the United States has intervened have settled in favor of the United States without consideration by a jury, and every criminal hospice fraud prosecution by the United States to date has resulted in a guilty plea or a conviction by jury. Every such case—whether civil or criminal—was initiated by a whistleblower under the public-private partnership of the False Claims Act.
The FCA’s whistleblower provisions have been highly effective at detecting fraud and recovering misappropriated Medicare dollars, but deterrence and prevention remain unattained goals.
The calculated business decision to settle False Claims Act allegations has proven over time to have a neutral-to-positive effect on corporate profitability in the hospice sector. For-profit hospice giants such as SouthernCare and Odyssey, who have paid eight figure settlements, have rebounded quickly and actually gained position over their competitors.....
Nevertheless, while the whistleblower provisions of the False Claims Act have proven extremely effective at discovering hospice fraud and at recovering at least some of the lost Medicare funds, alone the statute has demonstrated very little deterrent effect. Outside of a legislative overhaul of the Medicare Hospice Benefit, the only effective deterrent scheme will be for enforcement officials to supplement their use of the civil False Claims Act with traditional criminal fraud statutes. For this to work, however, criminal penalties must be imposed not only on the relatively small-scale players, like Matthew Kolodesh and Home Care Hospice, but also on the mega hospice companies and their executives and owners.
For more, read "Life, Death and Medicare Fraud: The Corruption of Hospice and What the Private Public Partnership Under the Federal False Claims Act is Doing About It," published in the 2016 issue of the American Criminal Law Review.
Monday, July 25, 2016
The answer might surprise you. It turns out that the older the person, the less the person spends Kaiser Family Foundation reports in a recently released Medicare data note. Medicare Spending at the End of Life: A Snapshot of Beneficiaries Who Died in 2014 and the Cost of Their Care was published July 14, 2016.
Of the 2.6 million people who died in the U.S. in 2014, 2.1 million, or eight out of 10, were people on Medicare, making Medicare the largest insurer of medical care provided at the end of life. Spending on Medicare beneficiaries in their last year of life accounts for about 25% of total Medicare spending on beneficiaries age 65 or older. The fact that a disproportionate share of Medicare spending goes to beneficiaries at the end of life is not surprising given that many have serious illnesses or multiple chronic conditions and often use costly services, including inpatient hospitalizations, post-acute care, and hospice, in the year leading up to their death. (footnotes omitted)
The authors examine the data on a number of points, with explanations and corresponding charts. Among their findings
Our analysis shows that Medicare per capita spending for beneficiaries in traditional Medicare who died at some point in 2014 was substantially higher than for those who lived the entire year, as might be expected. It also shows that Medicare per capita spending among beneficiaries over age 65 who die in a given year declines steadily with age. Per capita spending for inpatient services is lower among decedents in their eighties, nineties, and older than for decedents in their late sixties and seventies, while spending is higher for hospice care among older decedents. These results suggest that providers, patients, and their families may be inclined to be more aggressive in treating younger seniors compared to older seniors, perhaps because there is a greater expectation for positive outcomes among those with a longer life expectancy, even those who are seriously ill.
In addition, we find that total spending on people who die in a given year accounts for a relatively small and declining share of traditional Medicare spending. This reduction is likely due to a combination of factors, including: growth in the number of traditional Medicare beneficiaries overall as the baby boom generation ages on to Medicare, which means a younger, healthier beneficiary population, on average; gains in life expectancy, which means beneficiaries are living longer and dying at older ages; lower average per capita spending on older decedents compared to younger decedents; slower growth in the rate of annual per capita spending for decedents than survivors, and a slight decline between 2000 and 2014 in the share of beneficiaries in traditional Medicare who died at some point in each year.
The report is also available as a pdf here.
Sunday, July 10, 2016
In early June, the Urban Institute released a brief that examines whether Catastrophic Insurance Improve Financing for Long-Term Services and Supports. The abstract explains
A catastrophic insurance program could improve the way long-term services and supports are financed. The program would require enrollees who need care to wait a few years before they could collect benefits, but then it would provide those benefits as long as necessary. Our modeling results show that such a program could reduce Medicaid spending and provide financial relief to hard-pressed states. It could also reduce out-of-pocket spending for families facing catastrophic costs and fund new services and supports. By setting aside funds to cover future spending, a catastrophic insurance program could also raise national saving.
As we well know, paying for long-term care is a challenge for many. As the authors note, "[c]urrently, most people with LTSS needs rely mostly on unpaid family caregivers for assistance. If they need more help, they generally pay out of pocket until they exhaust their financial resources and then turn to Medicaid. New financing approaches could combine public insurance for catastrophic LTSS costs with initiatives to promote private long-term care coverage for other expenses. Our projections suggest that these options could significantly reduce Medicaid spending and provide better financial protection for older people who develop LTSS needs."
Looking at the ways long-term care is financed by many, the authors consider whether an insurance model might be the answer
New LTSS insurance programs could provide better financial protection to people with disabilities; improve the care they receive; and reduce Medicaid costs, which are creating financial problems for many state governments. By setting aside funds today to cover future LTSS spending, new insurance programs could raise national saving. And they could provide families with stronger incentives to save by reducing reliance on Medicaid, which discourages saving because it only pays benefits to people with virtually no wealth outside of their home. The effectiveness of any new insurance program, of course, depends on its particular features, such as eligibility requirements, the size of the daily benefit, and the financing mechanism.
The authors examine a few models to gauge their workability and conclude
An LTSS catastrophic insurance program that requires enrollees with LTSS needs to wait a few years before collecting benefits but then extends those benefits as long as necessary could substantially improve the way LTSS needs are financed in the United States. Such a program could reduce Medicaid spending, providing financial relief to hard-pressed states. It would also reduce out-of-pocket spending for families facing catastrophic costs and fund new services for older adults with LTSS needs, although these impacts would be somewhat smaller than those from a similar-sized program that provided front-end, but time-limited, benefits. By setting aside funds today to cover future LTSS spending, a new catastrophic insurance program could raise national saving. And it could provide families with stronger incentives to save by reducing reliance on Medicaid, which discourages saving because it only pays benefits to people with virtually no wealth outside of their home.
Program details need further analysis. We modeled only a few options, and alternative designs could have different effects. For example, a new insurance program could provide larger daily benefits, which would reduce Medicaid and out-of-pocket spending more than the plan we modeled but would also require more funding. Or new programs could require enrollees to wait even longer to receive benefits than the program we modeled, which would offset less Medicaid and out-of-pocket spending but cost less. Our research is only the first step in the analysis required to design new LTSS financing programs, but it illustrates the potential power of our simulation tool in demonstrating how new options can interact with existing programs.
Thursday, July 7, 2016
Our good friend and prolific author, Professor Marshall Kapp, let us know about his most recent article, Speculating About the Impact of Healthcare Industry Consolidation on Long-Term Services and Supports. The article is published as the lead article in volume 25, issue 2 of the Annals of Health Law. Here is the abstract of the article
The current health industry consolidation movement promises to exert an important and powerful array of effects on numerous different population groups seeking or receiving health services in a variety of different health care settings. Particularly regarding the potential impact of health industry consolidation on individuals contemplating, seeking, or obtaining long-term services and supports (LTSS), little is yet known but much may be plausibly speculated. This article joins in that speculation, but attempts to advance the constructive consideration of the topic by offering some suggestions for a research agenda to investigate specific empirical questions about consolidation’s impact on LTSS and thereby generate evidence and knowledge that can be used to either reduce or prevent negative aspects of consolidation for LTSS, on one hand, or foster and facilitate the achievement of positive effects, on the other.
Professor Kapp concludes:
The current, and probably continuing, consolidation of health services providers, producers, and sellers of healthcare products, as well as third-party payers for health services and products, inevitably will exert a variety of impacts on healthcare consumers generally and within specific contexts. Actual and potential consumers of LTSS, as well as their families, are likely to be affected in unique ways, differing to a large extent depending on the way that respective groups of consumers now finance their own LTSS. Little significant data is available yet regarding such effects, but speculation nonetheless abounds. This article joins in this basically uninformed but plausible speculation exercise but, I hope, adds constructively to the discussion by suggesting the rudiments of a health services research agenda that leads eventually to evidence-informed public policy making and private sector conduct that optimizes consolidation’s impact on consumers’ interests in access to, affordability of, and quality received in the realm of LTSS.
Thanks Marshall for letting us know and congratulations on the publication!
Tuesday, July 5, 2016
Special and Supplemental Needs Trust To Be Highlighted At July 21-22 Elder Law Institute in Pennsylvania
In Pennsylvania each summer, one of the "must attend" events for elder law attorneys is the annual 2-day Elder Law Institute sponsored by the Pennsylvania Bar Institute. This year the program, in its 19th year, will take place on July 21-22. It's as much a brainstorming and strategic-thinking opportunity as it is a continuing legal education event. Every year a guest speaker highlights a "hot topic," and this year that speaker is Howard Krooks, CELA, CAP from Boca Raton, Florida. He will offer four sessions exploring Special Needs Trusts (SNTs), including an overview, drafting tips, funding rules and administration, including distributions and terminations.
Two of the most popular parts of the Institute occur at the beginning and the end, with Elder Law gurus Mariel Hazen and Rob Clofine kicking it off with their "Year in Review," covering the latest in cases, rule changes and pending developments on both a federal and state level. The solid informational bookend that closes the Institute is a candid Q & A session with officials from the Department of Human Services on how they look at legal issues affected by state Medicaid rules -- and this year that session is aptly titled "Dancing with the DHS Stars."
I admit I have missed this program -- but only twice -- and last year I felt the absence keenly, as I never quite felt "caught up" on the latest issues. So I'll be there, taking notes and even hosting a couple of sessions myself, one on the latest trends in senior housing including CCRCs, and a fun one with Dennis Pappas (and star "actor" Stan Vasiliadis) on ethics questions.
Here is a link to pricing and registration information. Just two weeks away!
July 5, 2016 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)
Thursday, June 30, 2016
Traditional Medicare Versus Private Insurance: How Spending, Volume, And Price Change At Age Sixty-Five , an article published in Health Affairs, discusses one topic that we hear periodically-that is, raising the age of Medicare eligibility from 65 to 67. The abstract explains:
To slow the growth of Medicare spending, some policy makers have advocated raising the Medicare eligibility age from the current sixty-five years to sixty-seven years. For the majority of affected adults, this would delay entry into Medicare and increase the time they are covered by private insurance. Despite its policy importance, little is known about how such a change would affect national health care spending, which is the sum of health care spending for all consumers and payers—including governments. We examined how spending differed between Medicare and private insurance using longitudinal data on imaging and procedures for a national cohort of individuals who switched from private insurance to Medicare at age sixty-five. Using a regression discontinuity design, we found that spending fell by $38.56 per beneficiary per quarter—or 32.4 percent—upon entry into Medicare at age sixty-five. In contrast, we found no changes in the volume of services at age sixty-five. For the previously insured, entry into Medicare led to a large drop in spending driven by lower provider prices, which may reflect Medicare’s purchasing power as a large insurer. These findings imply that increasing the Medicare eligibility age may raise national health care spending by replacing Medicare coverage with private insurance, which pays higher provider prices than Medicare does.
A subscription is required to access the full article.
Wednesday, June 29, 2016
Last week Kaiser Health News (KHN) ran an update about Medicare's Observation Status, reminding readers that the requirements of the NOTICE Act go into effect on August 6, 2016. Medicare Releases Draft Proposal For Patient Observation Notice explains that CMS has asked for comments on the draft notice it created for hospitals to use to explain observation status to patients. One expert quoted in the KHN article "said the notice is written for a 12th-grade reading level, even though most consumer materials aim for no more than an eighth-grade level. It 'assumes some health insurance knowledge that we are fairly certain most people don’t have.'" Others interviewed for the article expressed concerns about the draft of the notice and whether it goes far enough. A sample of the draft notice can be viewed in the article. The comment period closed on June 17, 2016 and the article notes that the final CMS notice isn't expected until shortly before the law becomes effective.
Sunday, June 26, 2016
The GAO issued a new report on improving the Medicare Appeals process for original Medicare. Medicare Fee-For-Service: Opportunities Remain to Improve Appeals Process was released on June 9, 2016.
Here is what the GAO found:
The appeals process for Medicare fee-for-service (FFS) claims consists of four administrative levels of review within the Department of Health and Human Services (HHS), and a fifth level in which appeals are reviewed by federal courts. Appeals are generally reviewed by each level sequentially, as appellants may appeal a decision to the next level depending on the prior outcome. Under the administrative process, separate appeals bodies review appeals and issue decisions under time limits established by law, which can vary by level. From fiscal years 2010 and 2014, the total number of filed appeals at Levels 1 through 4 of Medicare's FFS appeals process increased significantly but varied by level. Level 3 experienced the largest rate of increase in appeals—from 41,733 to 432,534 appeals (936 percent)—during this period. A significant portion of the increase was driven by appeals of hospital and other inpatient stays, which increased from 12,938 to 275,791 appeals (over 2,000 percent) at Level 3. HHS attributed the growth in appeals to its increased program integrity efforts and a greater propensity of providers to appeal claims, among other things. GAO also found that the number of appeal decisions issued after statutory time frames generally increased during this time, with the largest increase in and largest proportion of late decisions occurring at appeal Levels 3 and 4. For example, in fiscal year 2014, 96 percent of Level 3 decisions were issued after the general 90-day statutory time frame for Level 3.
The Centers for Medicare & Medicaid Services (CMS) and two other components within HHS that are part of the Medicare appeals process use data collected in three appeal data systems—such as the date when the appeal was filed, the type of service or claim appealed, and the length of time taken to issue appeal decisions—to monitor the Medicare appeals process. However, these systems do not collect other data that HHS agencies could use to monitor important appeal trends, such as information related to the reasons for Level 3 decisions and the actual amount of Medicare reimbursement at issue. GAO also found variation in how appeals bodies record decisions across the three systems, including the use of different categories to track the type of Medicare service at issue in the appeal. Absent more complete and consistent appeals data, HHS's ability to monitor emerging trends in appeals is limited and is inconsistent with federal internal control standards that require agencies to run and control agency operations using relevant, reliable, and timely information.
HHS agencies have taken several actions aimed at reducing the total number of Medicare appeals filed and the current appeals backlog. For example, in 2014, CMS agreed to pay a portion of the payable amount for certain denied hospital claims on the condition that pending appeals associated with those claims were withdrawn and rights to future appeals of them waived. However, despite this and other actions taken by HHS agencies, the Medicare appeals backlog continues to grow at a rate that outpaces the adjudication process and will likely persist. Further, HHS efforts do not address inefficiencies regarding the way appeals of certain repetitious claims—such as claims for monthly oxygen equipment rentals—are adjudicated, which is inconsistent with federal internal control standards. Under the current process, if the initial claim is reversed in favor of the appellant, the decision generally cannot be applied to the other related claims. As a result, more appeals must go through the appeals process.
The GAO recommended:
To reduce the number of Medicare appeals and to strengthen oversight of the Medicare FFS appeals process, we recommend that the Secretary of Health and Human Services take the following four actions:
1. Direct CMS, OMHA, or DAB to modify the various Medicare appeals data systems to
a. collect information on the reasons for appeal decisions at Level 3;
b. capture the amount, or an estimate, of Medicare allowed charges at stake in appeals in MAS and MODACTS; and
c. collect consistent data across systems, including appeal categories and appeal decisions across MAS and MODACTS.
2. Implement a more efficient way to adjudicate certain repetitive claims, such as by permitting appeals bodies to reopen and resolve appeals.
A pdf of the full report is available here.
Wednesday, June 22, 2016
It's that time of the year! The Social Security Trustees and the Medicare Trustees released their 2016 reports. There is always a lot of information in these reports, but what everyone wants to know is when these programs are "running out" of money. According to the Social Security Trustees 2016 report, the SSDI and Retirement funds (combined) are "good" through 2034, although individually the SSDI fund isn't as robust, with its solvency at risk in 2023.
Here is an excerpt from the summary:
The Bipartisan Budget Act of 2015 was projected to postpone the depletion of Social Security Disability Insurance (DI) Trust Fund by six years, to 2022 from 2016, largely by temporarily reallocating a portion of the payroll tax rate from the Old Age and Survivors Insurance (OASI) Trust Fund to the DI Trust Fund. The effect of updated programmatic, demographic and economic data extends the DI Trust Fund reserve depletion date by an additional year, to the third quarter of 2023, in this year's report. While legislation is needed to address all of Social Security's financial imbalances, the need remains most pressing with respect to the program's disability insurance component.
The OASI and DI trust funds are by law separate entities. However, to summarize overall Social Security finances, the Trustees have traditionally emphasized the financial status of the hypothetical combined trust funds for OASI and DI. The combined funds satisfy the Trustees' test of short-range (ten-year) close actuarial balance. The Trustees project that the combined fund asset reserves at the beginning of each year will exceed that year's projected cost through 2028. However, the funds fail the test of long-range close actuarial balance.
The Trustees project that the combined trust funds will be depleted in 2034, the same year projected in last year's report....
The estimated depletion date for the HI trust fund is 2028, 2 years earlier than in last year’s report. As in past years, the Trustees have determined that the fund is not adequately financed over the next 10 years. HI tax income and expenditures are projected to be lower than last year’s estimates, mostly due to lower CPI assumptions. The impact on expenditures is mitigated by lower productivity increases.
Looking at the separate programs Part A (HI) and Part B (SMI) the picture for SMI is a bit better
The SMI trust fund is adequately financed over the next 10 years and beyond because premium income and general revenue income for Parts B and D are reset each year to cover expected costs and ensure a reserve for Part B contingencies. A hold-harmless provision restricts Part B premium increases for most beneficiaries in 2016; however, the Bipartisan Budget Act of 2015 requires a transfer of funds from the general fund to cover the premium income that is lost in 2016 as a result of the provision. In 2017 there may be a substantial increase in the Part B premium rate for some beneficiaries. (See sections II.F and III.C for further details.) ...
Wednesday, June 15, 2016
In a recent McKnight's News column, Registered Nurse Pam McKnally wrote an interesting and candid account of "What It's Like to Be a Nurse Whistleblower." Her experiences with retaliation -- indeed bullying-- after she complied with laws requiring to her report observations of improper use of narcotics in the workplace led her and others to advocate for changes in the law.
In April 2016, in response to the experiences of McKnally and others, Nebraska enacted changes to state law, prohibiting retaliation against whistleblowers and mandating confidentiality for the identities of anyone making reports of violations by "credentialed" health care providers. Nebraska Legislative Bill 750, amending Nebraska's law that governs a broad range of health care providers, specifies:
An individual or a business credentialed pursuant to the Uniform Credentialing Act shall not discriminate or retaliate against any person who has initiated or participated in the making of a report under the act to the department of [health and human services]. Such person may maintain an action for any type of relief, including injunctive and declaratory relief, permitted by law.
Further, the law now provides that "The identity of any person making such a report [of suspected violations] or providing information leading to the making of a report shall be confidential" and further, "The identify of any person making a report, providing information leading to the making of a report, or otherwise providing information to the department, a board, or the Attorney General included in such reports, complaints or investigational records shall be confidential whether or not the record of the investigation becomes a public record."
Whether the changes to Nebraska law, especially in the absence of a specific statutory sanction for retaliation or breach of confidentiality, will be effective to address the backlash experienced by McNally will bear monitoring. She cautions:
I resigned, as my work life was intolerable, and it was clear that I was about to get fired. The EOC investigated my claims. The costs in employee hours and attorney fees, plus fines for violations can be astronomical. Had the situation been handled differently by the Human Resource department, the outcome may have been much different.
It is time for employers to stop blaming and discrediting professionals who simply follow the law and advocate for themselves and their patients....
When nurses are happy they work hard. They are loyal and seek out constructive ways to help their organization deal with conflict. In long-term care, Medicare and Medicaid cuts mean money needs to be saved now more than ever. Keeping a business viable includes mitigating the need for attorneys and dealing with nurse turnover.
Wednesday, June 8, 2016
The Office of Inspector General issues regular reports to Congress, and the most recent report indicates that for the period of October 1, 2016 to March 31, 2016, the total amount of expected recoveries arising from allegations of healthcare fraud was $2.77 billion. That number is "up" by a billion dollars over the first half of fiscal year 2016.
Thursday, June 2, 2016
Recently I was at a dinner party with academics from across the spectrum of my university. As often happens, a group of us seated together for the meal swapped basic information about what we do in our day jobs. It was a fun group of art professors, special education specialists, and even an agricultural economist. We talked art and politics across the board. I had at first identified myself only as a professor at the law school, but during a lull in the conversation I explained my area was "law and aging" generally and more specifically the work of elder law attorneys. Ears perked up.
I had that experience that I suspect doctors have all the time. Everyone at the table had a question or story to tell of their family's recent aging issue. And as I listened, I recognized a common theme among these skilled, thoughtful professionals. I kept hearing that we knew "mom" or "aunt" or "grandpa" was getting older, and we offered help, but the help we offered either wasn't enough or was rejected outright. And often, the second part of their stories involved a "crisis." A particularly poignant example was the caring granddaughter who cooked and froze two weeks of meals for her frail, housebound grandmother, only to realize that her grandmother's "little bit of confusion" resulted in her opening all of the 14 days of dinners on the very first day. It precipitated a diabetic crisis for the grandmother, as well as the loss of the majority of the food.
Over the dinner, I was surprised to find myself talking a lot about what is dementia (and does it differ from Alzheimer's) and whether it can be distinguished from "temporary" conditions that cause short term confusion. Everyone at the table was searching for answers and admitting they didn't know enough before the crisis event. And I could completely empathize, because even with some 20 years of being fairly deeply immersed in elder care issues, I am regularly surprised by some new topic or challenge in my own family.
I had good reason to think about the party conversation again while listening to WITF-FM Public Radio's Smart Talk program on June 2. The program's guests were Dr. Linda Rhodes, the former Secretary of Aging for Pennsylvania, and Joan Krechmer, a geriatric care manager and the executive director for Jewish Family Services, in York, Pennsylvania and the topic was "Caring for Mom, Dad and Kids." Lots of people calling in and writing with very specific questions, and many of the questions were triggered by both crisis events and chronic care issues.
An example of one question was from a family member who was told the family had "24 hours" to decide about a skilled nursing facility when their loved one was being discharged from the hospital. "There is barely time to do the research" the program guests were talking about. And that is true. Even though federal law imposes a protocol on hospitals about discharge notices, and even provides a mechanism for informal appeal, which if triggered properly can automatically result in more time, most people simply won't know about that short-term remedy in advance.
The Smart Talk radio program is part of a larger series of events on the topic of family care-giving, including airing of the PBS television documentary on Caring for Mom & Dad and in-person sessions at area locations to talk about advance planning and identify resources in advance of a crisis.
Linda Rhodes, the former PA Secretary of Aging has written her own book, Caring for Aging Parents: The Essential Guide.
Thursday, May 26, 2016
Senior residential care provider Life Care Centers of America is the focus of recent legal news, including:
- KOAA TV 5 News: Colorado Jury Awards $5.5 million in wrongful death suit against Life Care Center of Pueblo.
- Chattanooga Times Free Press: Settlement May be Brewing in Government's Longtime Federal Case alleging False Claims - Billing Practices by Life Care Centers of America
Tuesday, May 24, 2016
A very sad story hit the news last week. A Florida man killed his chronically ill wife because they couldn't afford her prescriptions. Florida Man Says He Killed Sick Wife Because He Couldn’t Afford Her Medicine, Sheriff Says explains that the husband in the over 50 year marriage told the law enforcement officer who responded to the call that "[t]he cost of her medications had become so burdensome that they could no longer afford it ... [s]o on Monday morning while she was sleeping, he shot her in the head...." According to the article the husband has been charged with premeditated first degree murder. A representative of the Sherriff's office was quoted as saying that the husband "was perfectly clear on that he was going to be arrested and go to jail, but again, he felt that this is where it had gotten to him and this was his course of action... showed emotion and he was very clear that he was out of options in his mind.” At the time of the story, according to the article, there was no information about their health insurance status.
This story notes the issues with elders on fixed incomes and the costs of medications. There have been stories in the press of late about price spikes in certain medications and the Senate Committee on Aging has held two hearings this year on the topic, available here and here.
Monday, May 23, 2016
California Supreme Court Clarifies Parties Potentially Liable for "Neglect" Under State's Elder Abuse Law
I think it is safe to say that California has one of the most significant -- and for some, controversial -- "elder protection" laws in the U.S. For example, while all states permit state authorities to investigate and intervene in instances of elder abuse, California's statute recognizes a victim's private right of action for damages, arising from physical abuse, neglect, or fiduciary abuse of an elderly or dependent adult. There are certain proof requirements and limitations on the damages that can be awarded under California's Elder Abuse Act, but, where the plaintiff shows clear and convincing evidence of recklessness, oppression, fraud or malice, the prevailing party can also obtain "heightened remedies," including "reasonable attorneys fees" and costs. At the same time, the history of the California law also reflects a legislative tension between a determination to address elder abuse and concern about the potential impact of the broader remedy in so-called traditional "medical malpractice" claims. This tension plays out in a ruling by the California Supreme Court in the long-running case of Winn v. Pioneer Medical Group Inc. In the unanimous decision published May 19. 2016, the court helpfully summarizes its own holding:
We granted review to determine whether the definition of neglect under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code Section 15600 et seq.; the Elder Abuse Act or Act) applies when a health care provider -- delivering care on an outpatient basis -- failed to refer an elder patient to a specialist. What we conclude is that the Act does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient.
The court further explains, "It is the nature of the elder or dependent adult's relationship with the defendant -- not the defendant's professional standing -- that makes the defendant potentially liable for neglect. Because defendants did not have a caretaking or custodial relationship with the decedent, we find that plaintiffs cannot adequately allege neglect under the Elder Abuse Act."
The California Supreme Court concluded that the Winn plaintiffs cannot bring a claim for statutory "elder neglect" arising out of allegations that treating physicians failed for two years to refer an 83 year-old woman to a vascular specialist. The suit dates back to 2007-2009, with the patient alleged to have died from complications associated with chronic ulcers of her lower extremities. The unanimous ruling reverses the California Court of Appeals' 2 to 1 ruling in favor of the statutory claim, issued in May 2013.
This ruling does seem to leave nursing homes and similar "custodial" care providers potentially subject to the enhanced remedies of California's Elder Abuse Act.
Tuesday, May 3, 2016
The New York Times ran a story on May 2, 2016 that South Dakota is under investigation by the federal government for improperly placing many residents with disabilities in nursing homes instead of providing care in the community. South Dakota Wrongly Puts Thousands in Nursing Homes, Government Says reports that "the Justice Department said ... that thousands of patients were being held unnecessarily in sterile, highly restrictive group homes. That is discrimination, it said, making South Dakota the latest target of a federal effort to protect the civil rights of people with disabilities and mental illnesses, outlined in a Supreme Court decision 17 years ago."
As the story notes, many individuals need the level of care provided by a nursing home, but others do not. "But for untold numbers of others — with mental illnesses, developmental disabilities or chronic diseases — the confines of a nursing home can be unnecessarily isolating. Yet when patients seek help paying for long-term care, states often steer them toward nursing homes, even though it may not be needed." The article discusses the Olmstead decision and the government's strategies in these cases to challenge the placement.
South Dakota responded that they have made progress but the federal government sees it as not enough, especially since this is not a recent situation. "In-home health aides can be less expensive than nursing homes because they do not provide unnecessary services. States, though, face a chicken-or-egg conundrum. Does money go to nursing homes because beds are often more readily available than in-home services? Or are there fewer in-home services because less Medicaid money is spent on them? And nursing homes have little financial incentive to encourage patients to seek in-home care...."
This article can be a great starting point for an interesting discussion with students.
Tuesday, April 19, 2016
After my post on an article about adding a long term care benefit to Medicare, Professor Dick Kaplan (prolific author, elder law guru and friend) sent me an email reminding me about an article he wrote in 2004 that discussed the topic. "Cracking the Conundrum: Toward a Rational Financing of Long-Term Care,” is available from his SSRN page. Here is the abstract
This article provides a comprehensive solution to the financing of long-term care for older Americans that balances government and family responsibility, while recognizing the different settings in which long-term care is provided. The article begins by examining the spectrum of long-term care in the United States from home health care to assisted living to nursing homes, as well as hybrids such as continuing care retirement communities. Successive sections of the article then analyze the federal government's health care program for older persons (Medicare), the joint state and federal program for poor people of any age (Medicaid), and private long-term care insurance in terms of how these mechanisms treat long-term care in each setting.
Finding serious deficiencies and inconsistencies in all three mechanisms, the article then offers a co-ordinated alternative: expand Medicare to cover long-term care in nursing homes but maintain responsibility for other long-term care settings with the affected individuals and their families. This approach recognizes that nursing home care substitutes for hospital care that Medicare would otherwise cover, while other long-term care settings substitute for family-provided care. Long-term care insurance would then be used as a means of financing long-term care in settings other than nursing homes, thereby making it more appealing. In addition, such insurance would be less expensive than presently, because it would no longer be priced to cover costly nursing home care. The article also recommends that such insurance be improved by standardizing policy options and features into a fixed set of packages that would be uniform among carriers. Other recommendations include ensuring price stability of issued policies and providing independent reviews of gatekeeper claim denials. The article concludes with some observations regarding financing of these proposals.
Sunday, April 17, 2016
Periodically we will see observations about whether Medicare should offer a long term care benefit as part of Medicare coverage (would this be Part E or maybe Part LTC?). It isn't a secret that many often think Medicare has a long term nursing home benefit, confusing what Medicare covers with what Medicaid does. Health Affairs Blog ran a story recently about Medicare and long term care. Medicare Help At Home offers some sobering data
Nine million community-dwelling Medicare beneficiaries—about one-fifth of all beneficiaries—have serious physical or cognitive limitations and require long-term services and supports (LTSS) that are not covered by Medicare. Nearly all have chronic conditions that require ongoing medical attention, including three-fourths who have three or more chronic conditions and are high-need, high-risk users of Medicare covered services.
Gaps in Medicare coverage and the lack of integration of medical care and LTSS have serious consequences. Beneficiaries are exposed to potentially high out-of-pocket expenses. Medicaid covers LTSS for very low-income Medicare beneficiaries, but only one-fourth of Medicare beneficiaries with serious physical or cognitive limitations are covered by Medicaid.
The authors offer a 3-part proposal that would expand Medicare coverage to include home and community-based coverages:
A Medicare home and community-based benefit for those with two or more functional limitations, Alzheimer’s, or severe cognitive impairment, according to an individualized care plan based on beneficiary goals. This would cover up to 20 hours a week of personal service worker care or equivalent dollar amount for a range of home and community-based LTSS.
Creation of new Integrated Care Organizations (ICOs) accountable for the delivery and coordination of both medical care and LTSS that meet quality standards, honor beneficiary preferences, and support care partners.
Innovative models of health care delivery including a team approach to care in the home building on promising models of service delivery that improve patient outcomes, reduce emergency department use, prevent avoidable hospitalization, and delay or reduce long-term institutional care.
The article goes on to explain eligibility, beneficiary cost-sharing, financing, care delivery and coverage. The article concludes, offering that with the Baby Boomers " the Medicare program ... was not designed to support their [boomers] preferences for independent living and functioning.
Moving forward, adoption of a home and community based benefit in Medicare would constitute an important first step to helping beneficiaries afford the services and support they need to continue living independently. Adoption of innovative models of care emphasizing care at home or in independent living settings would reduce the difficulty and risk of obtaining services in traditional health care settings such as physician offices and hospitals. It would also reduce beneficiary reliance on Medicaid’s safety-net coverage of institutional care. It is a policy proposal worthy of serious consideration as the nation grapples with Medicare redesign to meet the needs of an aging population.
Monday, March 28, 2016
Kaiser Health News ran a story on March 18, 2016 about co-insurance trends in drug coverages. Coinsurance Trend Means Seniors Likely To Face Higher Out-Of-Pocket Drug Costs, Report Says explains that a new report shows that "Medicare beneficiaries may get dinged with higher prescription drug bills this year because more than half of covered drugs in standalone plans require them to pay a percentage of the cost rather than a flat fee...." This report notes that over half of the Part D covered drugs have a coinsurance payment rather than a fixed copayment. This means greater out of pocket costs for Medicare beneficiaries. As a result, predicting a beneficiary's out of pocket costs is more difficult.
The report, Majority of Drugs Now Subject to Coinsurance in Medicare Part D Plans is available here. A pdf of the report is available here.