Friday, June 29, 2018

Hidden Costs for States to Take Over Management of Struggling Care Facilities

A newspaper reporter in Pennsylvania, Nicole Brambila, has another interesting article related to law and aging.  She is examining what happens when struggling nursing home operations require intervention to protect existing residents.   Following the collapse of Skyline Healthcare facilities, which had been operating nine nursing homes in Pennsylvania, state authorities found it necessary to step in, and to hire a temporary manager.  Ms. Brambila begins:

The collapse of the nursing home operator caring for about 800 residents in nine Pennsylvania facilities, including one in Berks County, that required the state step in with a temporary manager will cost $475,000, the contract shows.

 

In April, the Pennsylvania Department of Health stepped in with a temporary manager at nine properties operated by Skyline Healthcare LLC over concerns the New Jersey-based company's finances may have put residents at risk.

 

State officials tapped Complete HealthCare Resources, which manages Berks Heim Nursing and Rehab, to step in as temporary managers until buyers could be found. The contract, obtained by the Reading Eagle under Pennsylvania's Right-to-Know Law, ended June 9. New owners purchased the Skyline homes last month, but Complete HealthCare stayed on through the transition.

 

The management fee is paid by fines collected from nursing home facilities.

 

Over the past five years, the state has stepped in more than a dozen times with temporary managers for poor performing nursing homes, at a cost of more than $4.2 million, according to health data provided to the newspaper.

 

The average cost for managing these troubled homes exceeded $335,000.

There is a lot to unpack here, including exactly how a state collects fines from financially defaulting providers.  Other states facing related issues in Skyline operations include Arkansas, Kansas, Nebraska and South Dakota.  According to the article Skyline recently purchased the some of the properties from Golden Living Centers, also the center of controversies, but then turned around and sold its interest 14 months later.

For the full story, read  "Pennsylvania to pay $475,000 for temporary nursing home manager."  Ms. Brambila seems to be carving out an important niche for her investigatory reporting, by focusing on senior issues. She recently wrote an important series on guardians in the Pennsylvania courts, also for the Reading Eagle, as we described here.   

June 29, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, June 28, 2018

When Complexity in the Law Is the Biggest Barrier to Home Care

Karen Vaughn, a woman living with quadriplegia in her own apartment for some 4o years, was held against her will in a care facility after hospitalization for a temporary illness. She wanted to go home. The state argued it could no longer find a home care agency that could provide the level of services Ms. Vaughn needed following a tracheostomy  in 2012. 

Ms. Vaughn's case gave a federal district judge in Indiana the opportunity to revisit the Supreme Court's landmark Olmstead decision from 1999. In ruling on cross motions for summary judgment, the court rejected the state's arguments as based on complexity in reimbursement rates, not availability of appropriate care providers.  Judge Jane Magnus-Stinson observed,  in ruling in favor of Ms. Vaughn, that

The undisputed medical evidence establishes that at or near the time of the filing of this Complaint, Ms. Vaughn’s physicians believed that she could and should be cared for at home—both because home healthcare is medically safer and socially preferable for her, and because Ms. Vaughn desires to be at home. . . . That support has continued throughout the pendency of this litigation, through at least April of 2018 when Dr. Trambaugh was deposed. Based on the evidence before this Court, it concludes as a matter of law that Ms. Vaughn has established that treatment professionals have determined that the treatment she requests—home healthcare—is appropriate.
The court traced, and criticized, the Byzantine nature of Medicaid waiver programs that fund portions of home care:
[State] Defendants' own administrative choices—namely, the restrictions they have imposed on Ms. Vaughn’s home healthcare provision pursuant to their Medicaid Policy Manual—have resulted in their inability to find a caregiver, or combination of caregivers, who can provide Ms. Vaughn’s care in a home-based setting. It may be the case that other factors, such as the nursing shortage or inadequate reimbursement rates, contribute to or exacerbate the difficulty in finding a provider. But, at a minimum, Ms. Vaughn has established that Defendants' administrative choices, in addition to their denials of her reasonable accommodation requests, have resulted in her remaining institutionalized.
 
For the full opinion, with the judge admitting frustrations in finding a solution, see Vaughn v. Wernert, USDC, Southern District of Indiana, June 1, 2018.  The judge recognized that the court cannot simply order "return home" as an appropriate remedy, and instead set a "remedy hearing" for July 30 to explore all proposals, while also urging the parties to meet prior to that hearing in hopes of finding a mutually agreeable plan.  If any of our readers hear the result, please do share! Best wishes to Ms. Vaughn.
 

June 28, 2018 in Current Affairs, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Social Security | Permalink | Comments (0)

Wednesday, June 27, 2018

Free Webinar-Financial Exploitation & Medicare Fraud

Mark your calendars for a free webinar on Financial Exploitation and Medicare Fraud. The National Center on Law & Elder Rights will be offering this webinar on Wednesday, July 18, 2018 from 2-3 edt. Here's info about the webinar

Medicare fraud hurts individuals and is harmful to the Medicare Trust Fund. The Medicare Trust fund loses between $60 and $90 billion dollars every year to fraud, waste and abuse. Individuals can lose access to Medicare services because their identity has been misappropriated by someone else. Law and aging advocates play an important role in helping older adults prevent, detect, and report Medicare fraud and abuse.

In this free webinar, Financial Exploitation and Medicare Fraud, California’s Senior Medicare Patrol will teach advocates how to identify potential Medicare scams and report fraud and abuse to the Senior Medicare Patrol. Justice in Aging will highlight potential exploitive Medicare practices and outlines strategies to help prevent exploitation. 

To register, click here

 

 

June 27, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Webinars | Permalink | Comments (0)

Thursday, June 21, 2018

Boomerang Hospital Admissions and Medicare

Kaiser Health News recently reported on efforts by CMS to crack down on what KHN calls "boomerang" hospital admissions. Medicare Takes Aim At Boomerang Hospitalizations Of Nursing Home Patients focuses on the situation where nursing home residents have multiple hospitalizations.

With hospitals pushing patients out the door earlier, nursing homes are deluged with increasingly frail patients. But many homes, with their sometimes-skeletal medical staffing, often fail to handle post-hospital complications — or create new problems by not heeding or receiving accurate hospital and physician instructions.

Patients, caught in the middle, may suffer. One in 5 Medicare patients sent from the hospital to a nursing home boomerang back within 30 days, often for potentially preventable conditions such as dehydration, infections and medication errors, federal records show. Such rehospitalizations occur 27 percent more frequently than for the Medicare population at large.

One solution implemented by CMS, the story explains, has been to penalize hospitals when the resident is readmitted, "in an attempt to curtail premature discharges and to encourage hospitals to refer patients to nursing homes with good track records."  In the next few months, CMS will now initiate a program with incentives for nursing homes: "giving nursing homes bonuses or penalties based on their Medicare rehospitalization rates. The goal is to accelerate early signs of progress: The rate of potentially avoidable readmissions dropped to 10.8 percent in 2016 from 12.4 percent in 2011, according to Congress’ Medicare Payment Advisory Commission."

Of course, this doesn't mean that a resident will never be hospitalized but hopefully this will make the process and the care better for residents.  The article looks at reasons for the frequent admission problems, noting the causes include ineffective communication between the nursing home and the treating doctors.

This issue is a common one.

Out of the nation’s 15,630 nursing homes, one-fifth send 25 percent or more of their patients back to the hospital, according to a Kaiser Health News analysis of data on Medicare’s Nursing Home Compare website. On the other end of the spectrum, the fifth of homes with the lowest readmission rates return fewer than 17 percent of residents to the hospital.

Stay tuned.

June 21, 2018 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Wednesday, June 20, 2018

New Rules Governing Nursing Facility Care Trigger New Approaches to Advocacy

Eric Carlson, Nancy Stone and Lori Smetanka have joined forces to write an important new guideline for advocacy under the revisions issued by CMS in 2016 for nursing facility care, with an eye towards additional changes likely to occur under the Trump administration.   

After surveying the most important reforms, they advise:

The revised regulations contain both positives and negatives for nursing facility residents and their advocates. The positives include expanded requirements for person-centered care, care planning, and resident choice and participation in health care services. The revised regulations also strengthen the NHRA’s prohibitions against facilities requiring a third-party guarantee of payment or a waiver of legal rights, and protections for residents from improper transfer/discharge. In addition, the regulations have added requirements for a facility grievance official and procedures.

 

It is disappointing, however, that the revised regulations do not require a registered nurse around the clock or a minimum staffing standard. Even though unnecessary restraints are included in the definition of “abuse” and the requirements for drug regimen reviews and reporting of unnecessary drugs were expanded, the revised regulations compromise the focus on ending the misuse of antipsychotic medications.

 

In addition, the Trump administration has proposed a repeal of the ban on predispute arbitration agreements and delayed enforcement remedies for certain Phase 2 requirements. The administration is also considering the repeal or further modification of other revised regulations (e.g., regulations on grievance procedures, quality assurance, and ombudsman discharge notices).

The authors explain the importance of advocacy in this time of change:

Even though CMS and the states are responsible for implementing these regulations, regulation implementation, if left solely to government agencies and providers, is usually scattershot and inadequate. For the revised regulations to truly become the national standard of care, nursing facility residents and their advocates must be prepared to assert resident rights over and over again. Another unfortunate reality is that nursing facilities may be hostile or apathetic toward the revised regulations and the survey agencies can only do so much, given that federal law requires surveys only once a year. For these reasons, it is up to residents, families, and advocates to be knowledgeable about the federal law and make nursing facilities accountable when they fall short.

For the full picture, read Advocating for Nursing Facility Residents Under the Revised Federal Requirements,  published April 2018 in the NAELA Journal, and available online as a PDF.

 

June 20, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Tuesday, June 12, 2018

Medicare Trustees Release Bleak News on Trust Fund

The Medicare Trustees have released their 2018 annual report, which is chock-full of empirical data.  Reporting on this, the New York Times puts things in perspective with their story:Medicare’s Trust Fund Is Set to Run Out in 8 Years. Social Security, 16. This is less time than was reported  last year, as the story explains:

The Medicare trust fund will be depleted in 2026, the administration said. By contrast, the government said last year that the trust fund would be exhausted in 2029.

In a companion report, federal officials said the Social Security Trust Funds for old-age benefits and disability insurance, taken together, could be depleted in 2034, the same year projected in last year’s report. The fund that helps tens of millions of retirees is expected to be depleted a year earlier than projected last year, while the outlook for the disability trust fund is more favorable.

A good economy doesn't seem to be enough to extend the programs' solvency, according to the article:

The report said the less favorable outlook for Medicare’s hospital trust fund resulted from “adverse changes” in program income and costs. Income to the Medicare fund is expected to be lower than estimated last year because of “lower payroll taxes attributable to lowered wages in 2017 and lower levels of projected gross domestic product,” the Treasury said in a “fact sheet” accompanying the report.

At the same time, it said, outlays from Medicare’s hospital trust fund “are expected to be higher than last year’s estimates due to higher-than-anticipated spending in 2017, legislation that increases hospital spending” and higher payments to private Medicare Advantage plans.

The Trustees report explains why the trust fund's time line has sped up:

The estimated depletion date for the HI trust fund is 2026, 3 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 income is projected to be lower than last year’s estimates due to (i) lower payroll taxes attributable to lowered wages for 2017 and lower levels of projected GDP and (ii) lower income from the taxation of Social Security benefits as a result of legislation. HI expenditures are projected to be slightly high er than last year’s estimates, mostly due to higher than expected spending in 2017, legislation that increased hospital spending, and higher Medicare Advantage payments .

The full Trustees' report is available here.

June 12, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Social Security | Permalink | Comments (1)

Monday, June 11, 2018

Aging: "The One Shark We Cannot Escape"

My good friend and colleague, Pennsylvania Elder Law Attorney Linda Anderson, has a thoughtful essay about her personal journey in elder law in a recent issue of  GPSolo,  the ABA journal for solo, small firm, and general practitioners.  Her closing paragraphs address several core issues, comparing her elder law focus with traditional tax and estate planning concerns.  I enjoyed her use of classic lines from the movie Jaws.  

My early work with elder clients or their adult children across a variety of asset levels certainly involved tax and estate planning. But it became clear that serving and protecting these clients demanded more than just good lawyering, that good planning needed “a bigger boat.” It entailed comprehensive knowledge of the Social Security, Medicaid, and VA benefits bureaucracies, close engagement with insurance providers, geriatric care managers, social workers, and other professionals, as well as close monitoring of state and federal regulatory and policy changes and housing and age discrimination laws, among others. The eventual next step for me was completing the requirements to become a certified elder law attorney (CELA).
 
 
Solo or general practice attorneys do not have to become dedicated elder law experts when taking on clients seeking long-term care and funding planning. Take those clients, but be prepared to augment tax and estate planning expertise with a deep dive into areas of elder and special needs law and funding mechanisms. All this is doable, of course, but the biggest difference is in mindset. Attorneys often approach estate and long-term care planning as transactional or episodic--needs arise, documents are drafted or revised, and we and the clients move on. But the nature of the legal work I've touched on above demands a continuing, flexible outlook and a lot of homework. When in doubt, consult with or refer your client to a CELA-qualified attorney. These attorneys are listed in the website for the National Elder Law Foundation (NELF, nelf.org). Another resource for lawyers (who may or may not be CELA-qualified) is the National Academy of Elder Law Attorneys (NAELA, naela.org). Both organizations are excellent sources for information and referrals.
 
 
Finally, as we all learn in time, everything that we've covered here will become very personal for each of us. This may first happen through our parents or siblings as they transition and age, but it's necessarily part of our own futures as well. That's true whether you're a Baby Boomer looking at 70, a Gen Xer thinking that 40 is “old,” or any age in between.
 
 
Aging is the one shark we cannot escape. But as attorneys, we know how to plan and can build our clients' (and our own) “boats” to manage aging as well as possible.
 
The full article is currently behind a paywall on the ABA website. For more of Linda's wise words, it is worth tracking down a copy of An Elder Care Lawyer's Story.  It is in Volume Issue No. 2 (March/April, 2018) of GPSolo.  It is also available on Westlaw, although, of course, that's another paywall.   

 

June 11, 2018 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Thursday, June 7, 2018

Michigan Bar Journal Issue Explores the Intersection of Elder Law and Disability Law

A recent issue of the Michigan Bar Journal offers interesting practitioner perspectives on disability law and elder law issues.  The January 2018 issue includes:  

Introducing the theme of the issue, attorney Christine Caswell writes: 

While there may be a perception that the section focuses on helping clients qualify for public benefits, its mission is actually much broader. Elders and those with  disabilities have many of the same issues as the rest of the population— divorce, consumer problems, bankruptcy, business ownership, and litigation—but these issues are magnified when questions arise concerning competency, the need for ongoing care, and discrimination. Moreover, these different legal areas may conflict when determining what is in the best long-term interests of these clients.

June 7, 2018 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, May 23, 2018

Myths & Mistakes About New Medicare Cards: AARP Research Survey

As we all know, CMS has been rolling out the new Medicare cards without SSN on them.  AARP Research conducted a survey about the new cards, and the results are quite interesting.  2018 AARP Survey: Experience and Knowledge of Medicare Card Scams explains:

n March 2018, AARP engaged Alan Newman Research to conduct a national research study among U.S. adults ages 65 and older about their experience and knowledge around the new Medicare cards being issued in April 2018 and potential vulnerability to scams related to the new card and benefits. 

Key findings include the following:

  • Most (76%) U.S. adults ages 65 and older indicate they have not seen, read, or heard much or anything at all about the new Medicare cards (or are not sure).
  • Three in four (75%) Medicare beneficiaries are not sure or are incorrect about the key change with the new cards being new identification number.
  • Nearly two-thirds (63%) of Medicare beneficiaries are unsure or are incorrect in believing that Medicare will charge new beneficiaries a $25 processing fee for the new card. 
  • Over half (56%) are not sure or are wrong in thinking that Medicare will call them to verify their Social Security number before they can receive their new card.
  • At least one in three are extremely/very concerned about being a target of Medicare scam (33%) or victim of identity theft (40%).

A pdf of the survey results is available here.

 

May 23, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Statistics | Permalink | Comments (0)

Tuesday, May 22, 2018

Congrats to NAELA

NAELA celebrated its 30th year with its annual conference in New Orleans, LA on May 17-19, 2018. The conference consisted of three tracks: legal tech, advocacy and public benefits.  The well-attended conference packed in a great amount of programming in two and a half days. Speakers included leaders from the field of elder law, consultants, cyber security experts, researchers and more.  NAELA members unable to attend may check the NAELA website for more information.

In addition, Michael Amoruso was sworn in as the next NAELA president by outgoing president Hy Darling.  Congrats NAELA!

(In the interest of full disclosure, I'm a former president of NAELA and co-chair of the planning committee for this conference.)

 

May 22, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, May 10, 2018

Why Can't Medicare Beneficiaries use Drug Discount Coupons?

Because Medicare says so, that's why. Actually that's a bit of a glib answer. Instead, as Kaiser Health News explains it in the article, Medicare Beneficiaries Feel The Pinch When They Can’t Use Drug Coupons it's about impartiality.

Under the federal anti-kickback law, it’s illegal for drug manufacturers to offer people any type of payment that might persuade them to purchase something that federal health care programs like Medicare and Medicaid might pay for. The coupons can lead to unnecessary Medicare spending by inducing beneficiaries to choose drugs that are expensive.

“The law was intended to prevent fraud, but in this case it also has the effect of prohibiting Part D enrollees from using manufacturer copay coupons … because using the coupon would be steering Medicare’s business toward a particular entity,” said Juliette Cubanski, associate director of the Program on Medicare Policy at the Kaiser Family Foundation.

The story digs down deeper into the issue regarding coupons and discusses the ramifications of such use, including higher costs, dismissal of less-expensive alternatives and annual ceililngs on the cards.

Now we know.

May 10, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Tuesday, May 8, 2018

Do You Have Enough Retirement Savings? -- Here's An Encouraging Report

Most commentaries on funding for retirement years point to insufficiency of savings or other resources.  But here's a different take, drawing upon a recently published report from the Employee Benefit Research Institute (EBRI) that suggests retirees with significant savings are often exercising restraint in spending,  From the St. Louis Post-Dispatch on The Myth of Outliving Your Retirement Savings:

In the EBRI study, those with the most savings — a median of $857,450 shortly after retiring — still had $756,300 two decades later. The decrease amounts to just 11.8 percent of the original sum.

 

The largest drop in retirement nest eggs, 24.4 percent, was among those with the least savings, or a median of $29,975.

 

Frugal behavior is consistent with research led by Anna Rappaport for the Society of Actuaries. She and her team found that most people do not plan for retirement or know what they should spend, but they adapt — even when shocked by high dental bills or a roof repair.

 

What can devastate financially are divorce, caring for a mentally or physically ill adult child who cannot work, and long-term care expenses, according to the actuarial society’s research.

 

Still, debilitating health care costs are far more rare than people fear, according to the EBRI research. Half of retirees face no nursing home expenses because Medicare covers short recoveries after hospital stays and Medicaid can help when resources run out.

 

The medical annual out-of-pocket spending for 90 percent of retirees is just $2,000, and the big nursing home costs over $87,000 hit only 10 percent of people living longer than 95, according to the EBRI study.

For the EBRI study itself, see the April 2018 report on Asset Decumulation or Asset Preservation?  What Guides Retirement Spending? 

May 8, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Medicaid, Medicare, Retirement, Statistics | Permalink | Comments (0)

Thursday, May 3, 2018

21st Annual Elder Law Institute in Pennsylvania, July 19-20, 2018, Open for Registration

Hard to believe, but this summer will mark the 21st annual Elder Law Institute in Pennsylvania  It functions as both a gathering of the clan and an educational update, and I always walk away with new ideas for my own research and writing.  On the second day of the event (which runs July 19 and 20), Howard Gleckman will give the keynote address on "Long Term Care in an Age of Disruption."  Doesn't that title capture the mood of the country?!  

Practical workshops include:

  • Using Irrevocable Trusts in Pre-Crisis and Crisis Planning - Ms. Alvear & Ms. Sikov Gross
  • Guardianship for Someone Who Is 30/30 on the MMSE (Advanced Mental Health Capacity Issues) - Ms. Hee & Mr. Pfeffer
  • Medicaid across State Lines: Pennsylvania vs. New Jersey - Mr. Adler
  • Medicaid Annuities in Practice - Mr. Morgan & Mr. Parker
  • Business Succession Planning for Elder Law Practices - Ms. Ellis, Mr. Marshall, Mr. Pappas & Ms. Wolfe
  • Social Security Disability: What Elder Law Practitioners Need to Know - Mr. Whitelaw
  • Drafting Trusts for Beneficiaries with Behavioral Impairments and Mental Health Problems - Mr. Hagan & Dr. Panzer
  • Being a Road Warrior Attorney: Staying Organized and in Touch While Out of the Office (ETHICS) - Ms. Ellis

Mark your calendars and join us (Linda Anderson, Kimber Latsha and I are hosting a session on Day 1 about "new" CCRC issues).  Registration is here.  

May 3, 2018 in Books, Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, May 1, 2018

Change Proposed re: Medicare Payment to Nursing Homes

Have you checked out the unpublished proposed rule from CMS (scheduled to be published on May 8, 2018)? The lengthy proposal, available here as a pdf, provides this summary

This proposed rule would update the payment rates used under the prospective payment system (PPS) for skilled nursing facilities (SNFs) for fiscal year (FY) 2019. This proposed rule also proposes to replace the existing case-mix classification methodology, the Resource Utilization Groups, Version IV (RUG-IV) model, with a revised case-mix methodology called the Patient-Driven Payment Model (PDPM) effective October 1, 2019. It also proposes revisions to the regulation text that describes a beneficiary’s SNF “resident” status under the consolidated billing provision and the required content of the SNF level of care certification. The proposed rule also includes proposals for the SNF Quality Reporting Program (QRP) and the Skilled Nursing Facility Value-Based Purchasing (VBP) Program that will affect Medicare payment to SNFs.

There's a provision for exceptions for SNFs when a disaster strikes (referred to in the proposed rule as "extraordinary circumstances") adding 42 C.F.R. 413.33(d)(4). 

According to InsideHealthPolicy, in their article, CMS Proposes New Payment Model For Skilled Nursing Homes describes the changes: "CMS is proposing to overhaul the way Medicare pays nursing homes so as to focus more on each resident’s particular needs and move away from volume-based reimbursements, the agency said in a proposed rule released Friday (April 27). The new payment model would tie payments to patients’ conditions and simplify nursing homes’ reporting requirements...." (a paid subscription is required to read the full article).

 

 

May 1, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Thursday, April 26, 2018

Commission on Law & Aging-Latest Issue of BIFOCAL

Happy Friday! If you haven't read the latest issue of BIFOCAL, the publication of the American Bar Association Commission on Law & Aging, check it out here. This issue contains 6 articles, including the implications of the tax bill on older Americans, POLST issues to avoid, the new Medicare cards, a book review, and a preview of the 2018 NALC conference.  Access the latest issue here.

April 26, 2018 in Advance Directives/End-of-Life, Books, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Programs/CLEs | Permalink | Comments (0)

Tuesday, April 24, 2018

Medicare's Observation Status-Impacting the Pocket Book of Patients

We have had several blog posts about the issues with Medicare's Observation Status.  A recent story on NPR (thanks to our friend Professor Naomi Cahn for sending it to us) gives us a first-person account of the impact observation status has on a patient's checkbook. How Medicare's Conflicting Hospitalization Rules Cost Me Thousands Of Dollars tells the story of a daughter who had to pay $12k for a nursing home stay for her mother's care because her mother didn't have a qualifying three-day hospital stay even though her mother was in the hospital for 4 nights. Why wouldn't Medicare pay? Say it with me now-observation status.  As the daughter relates,  her "mother was caught in an administrative wonderland where she slept at a hospital for four nights, but the paperwork said she was an inpatient only one of those nights. Medicare's rules, dating back to the 1960s, require people to spend three nights in a hospital before the federal program will pay for inpatient rehabilitative care."  She notes her frustration with the explanations that focused on rules rather than her mother's medical care:

  • The doctor couldn't admit her as an inpatient because she didn't have a qualifying diagnosis.
  • Her status was changed from observation to inpatient on the third day because Medicare requires that.
  • They could not change her status to inpatient for the entire stay because they didn't want to be audited.
  • She couldn't go to acute rehabilitation, which Medicare pays for, because there was no evidence she had had a stroke or heart attack.

She describes the competing Medicare Rules that produce this dilemma, and hospitals' concerns about audits. She also describes software that hospitals use to decide whether to admit a patient or maintain the patient on observation status. To admit or not to admit, that is the question! (with apologies to William Shakespeare).  This long-standing problem rule is well-known, and Congressional bills to fix it haven't gotten traction, she writes.  Why not shelve the three-night requirement?  The article mentions money as a likely explanation, but it appears that it is not 100% certain that is the reason, as the author cites to two studies from the '70s.

Regardless, I do think we can agree that the requirement catches some folks off guard (despite the NOTICE Act) and costs many folks who need SNF care subsequently a lot of money.

For more on the issue of observation status, visit the Center for Medicare Advocacy.

April 24, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Tuesday, April 17, 2018

Access to Justice for Older Adults: Is the Glass Half Empty or Half Full?

Testimony before PA House Hearing on Access to Justice 4.11.18TThe Pennsylvania House Committee on Aging and Older Adult Services  invited representatives of legal aid organizations to speak on April 11, 2018.  As I listened to attorneys from SeniorLAW Center, Community Legal Services of Philadelphia, MidPenn Legal Services and the Deputy Chief Counsel and Legal Assistance Developer for Pennsylvania's Department of Aging, it occurred to me that many of the client histories, including my own school's clinic story, were about positive outcomes in representing individuals facing potentially tragic futures, including eviction from the only housing they know, rejection for Medical Assistance, or no option but to rely on the unkindness of strangers. 

We were speaking, understandably, about the good that trained lawyers and lawyers-in-training (students in law school clinical programs) can do.  For example, Pam Walz, director of the Aging and Disabilities Unit at Community Legal Services (CLS) in Philadelphia told the story of a recent client, "Mr. D," who at age 70 was living alone in a single room in a rooming house.  He was found unconscious, leading to hospitalization:

He had suffered a stroke and at the hospital he was also diagnosed with throat cancer.  A treatment plan was created, including radiation therapy, and he had to have a feeding tube placed.  The hospital discharged him to a nursing facility because they did not think he could care for himself alone in a rooming house. . . .

 

Mr. D received rehabilitation for about two weeks at the nursing facility but the facility failed to coordinate with his oncologist or to provide him with transportation for his first radiation treatment.  Worse yet, the nursing facility told Mr. D that they were discharging him because his Medicare coverage had ended, despite the fact that he continued to need nursing facility care and is eligible to have his continued stay paid by Medicaid [under federal and state law]. . . .  The nursing facility had also failed to provide a legally required written notice of discharge, explaining Mr. D's rights to appeal the discharge to the Department of Human Services. . . . [S]ending Mr. D back to his rooming house in his condition would not be a safe discharge.

CLS attorneys stepped in and filed the appropriate papers to get the discharge stopped until the legally mandated "safe" discharge plan could be determined.  They recognized that Mr. D was further in jeopardy because he needed assistance in Spanish, a requirement safeguarded by Title VI of the federal Civil Rights Act.  

CLS attorneys will continue to represent him.  The message in common for the speakers is about the better outcomes possible when trained experts step in.  On the one hand it is a success story and a success story heard across the nation at the hands of both legal aid attorneys and private attorneys who are skilled in the array of state and federal laws intended to protect older adults and provide greater dignity in circumstances of need, including ill health or extreme risk.  

I realized that with our testimony, including my testimony about students at Penn State's Dickinson Law's Community Law Center, who were able to prevent the wrongful eviction of an older man, we were painting a picture of a glass half full. But a half-full glass is also half-empty.  As I testified, the histories also made me a bit sad, because I know how many calls for help go unanswered, because there aren't enough free or low cost services for those in need. 

As one woman explained to me in seeking a lawyer, "I had a plan.  I planned to work until I was 70 and I made it.  I planned my savings to last until I was 80 and I made it.  Unfortunately, now I'm 85 and my savings weren't enough, Social Security isn't enough, and I don't know what to do. . . . I think I need help with my creditors, but I can't pay an attorney to help me."

I testified that law schools with clinical programs and legal aid organizations are willing to do more to represent the underrepresented, but to do so each such organization needs ines of funding dedicated to older adult legal services.  In more rural communities, the need may be especially serious.  It's not that the glass is half full or half empty, it's that the glass is probably just 20% full, as so many go without sound legal advice until desperation sets in, and even then only a small number get help in time. 

In the photo here, after testifying before the House committee, we're smiling because key members were listening and asking important questions. PA House of Representatives Hearing on Access to Justice for Older Adults 4.11.18
The tall man in the center, Chairman Tim Hennessey, has long served in a leadership role for senior services in Pennsylvania.  Around him, from left to right, me, Deborah Hargett-Robinson (Pa Department of Aging), Wendy Bookler (SeniorLAW Center), Karen Buck (Exec. Dir. SeniorLAW Center), Pam Walz (CLS) and Marisa Halm (Dickinson Law 1L student who will intern with SeniorLAW in summer 2018).

I'm often bouyed by the commitment of so many students to public interest law. Students who plan on private practice also, increasingly, recognize commitments to public service with their own pro-bono pledges.  Private attorneys who make a commitment of a percentage of their time to pro-bono services are part of the solution.

Justice Sonia Sotomayor, before she made it to the bench of the highest court in the U.S., reminded lawyers of our duty to "represent the underrepresented in our society" and to "ensure that justice exists for all, both legal and economic justice."  A reminder in these challenging times of our ability and obligation to do good.  

For more, here's a link to my written testimony.

My special thanks to Karen Buck for her leadership role on the future of legal services in Pennsylvania.  Here is the link to SeniorLAW Executive Director Buck's testimony;  Karen opened the hearing.

April 17, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (1)

Monday, April 2, 2018

Another Avenue in the Opioid Fight-This Time from Medicare

There have been innumerable articles about the opioid crisis and how to crack down on abuses. Medicare has joined the fight, announcing a limit on coverage of opioids. Medicare Is Cracking Down
on Opioids. Doctors Fear Pain Patients Will Suffer explains that Medicare concluded that it "would now refuse to pay for long-term, high-dose prescriptions; a rule to that effect is expected to be approved on April 2."  Typically prescribing is the doctor's decision and this rule is may have wide-ranging impact, especially on those who are taking opioids appropriately. What happens to those who can't get their prescriptions refilled under Medicare as a result of this rule?  One expert explained "'[t]he decision to taper opioids should be based on whether the benefits for pain and function outweigh the harm for that patient,” said ... an opioid researcher and associate professor at Albert Einstein College of Medicine. 'That takes a lot of clinical judgment. It’s individualized and nuanced. We can’t codify it with an arbitrary threshold.'"

The article explains that under this new rule Medicare's coverage would be limited to "seven days of prescriptions equivalent to 90 milligrams or more of morphine daily, except for patients with cancer or in hospice."

What is the purpose of this rule, other than a response to the opioid crisis? The article references an unnamed Medicare official "ho would speak only on background said that the limit for monthly high doses was intended not only to catch doctors who over-prescribe, but also to monitor patients who, wittingly or not, accumulate opioid prescriptions from several doctors. When the dose is flagged, the pharmacist or patient alerts the doctor."  This means that the pharmacist will be a key player in this rule.  The rule will have an appeals process that a doctor can pursue, but keep in mind the time it takes for an appeal, and a doctor's patient load, resulting in a time period where the patient would be without pain meds of this type.

The article ends quoting one doctor about the potential impact of the rule whose "concern is that our results could be used to justify aggressive tapering or immediate discontinuation in patients, and that could harm people — even if opioids have no benefit for their pain ...  [and] [e]ven if we walk away from using opioids for back and knee pain, we can’t walk away from patients who have been treated with opioids for years or even decades now.... "  The doctor added that there is  looming "'a double tragedy for these people.'"

April 2, 2018 in Consumer Information, Crimes, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Monday, March 5, 2018

Surgery Late in Life?

Kaiser Health News ran the story, Never Too Late To Operate? Surgery Near End Of Life Is Common, Costly that opens with this startling statistic: "Nearly 1 in 3 Medicare patients undergo an operation in their final year of life." Several paragraphs into the story the quote is repeated, but with this additional information: "[n]early 1 in 3 Medicare patients undergo an operation in the year before they die, even though the evidence shows that many are more likely to be harmed than to benefit from it."

So why does this happen? According to the article, there are financial incentives plus we are dealing with a "medical culture" where "patients and doctors are reluctant to talk about how surgical interventions should be prescribed more judiciously.... "  The article discusses several surveys regarding surgeries in the older population with the benefits and burdens from such surgeries.  As well, there are significant implications for elders undergoing surgery, including longer recovery time and less tolerance with anesthesia.

Thinking through medical treatment options takes time. One tool being developed by "[m]any hospitals and health systems is ... “decision aids,” easy-to-understand written materials and videos to help patients make more informed medical decisions, giving them time to develop more realistic expectations." Another approach discussed in the article is a move away from the use of statistics and instead have the focus on narratives where the "doctors should lay out the best, worst and most likely outcomes."  If the best cases scenario resulting from the medical intervention isn't something that the patient finds acceptable, then that's a big indicator that the patient should not undergo the medical intervention.

Interesting ideas!

March 5, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Tuesday, February 27, 2018

Medicare Good News...and not... out of the Bipartisan Budget Act of 2018

As part of the Bipartisan Budget Act of 2018,  signed into law earlier in February, Medicare's therapy caps were repealed!  As explained by Justice in Aging in a recent fact sheet, ""[t]he law permanently repeals the payment cap on outpatient physical, occupational, and speech therapies effective January 1, 2018, and makes changes to the medical necessity review process for these services." As well, the law closes the donut hole one year earlier, "at which time beneficiaries will be required to contribute 25% to the cost of prescription drugs. This provision does not affect coverage for beneficiaries who receive the Part D low-income subsidy known as “Extra Help,” since they already don’t experience the donut hole."

Then there is the change to Home Health Care, starting in 2020, where "[t]he home health payment episode will be reduced from 60 days to 30 days and therapy thresholds will be eliminated. Beginning in 2019, Medicare will be allowed to base eligibility determinations for home health services on a review of the patient’s medical record including a home health agency’s record beginning in 2019."  As well, the Part B and D premiums for higher income beneficiaries will go up starting in 2019.

To read the entire fact sheet, click here.

 

February 27, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink