Monday, July 28, 2014

Highlights from the 17th Annual Elder Law Institute in Pennsylvania

Recently a former law student who is considering a career change asked me about elder law, wanting to meet with me to discuss what is involved. I'm happy to chat any time with current and former students, especially about elder law, but this time my advice was simple:  "Drop everything and go to Pennsylvania's 2014 Elder Law Institute."  Indeed, this year saw some 400 individuals attend. 

Important to my advice was the fact that ELI is organized well for both "newbies" and more experienced practitioners.  After the first two-hour joint session, over the course of two days there are four sessions offered every hour.  One entire track is devoted to "Just the Basics" and is perfect for the aspiring elder law attorney.  Indeed, I usually sponsor two Penn State law students to attend.  As in most specializations, in elder law there will is a steep learning curve just to understand the basic jargon, and the more exposure the better.

One of my favorite sessions is the first, "The Year in Review," a long tradition at ELI and currently presented by Marielle Hazen and Rob Clofine.  Marielle reviews new legislation and regulations, both at the state and federal level, while Rob does a "Top Ten Cases" review.  Both speakers focus not just on what happened in the last 12 months, but what could or should happen in the future.  They frequently pose important policy perspectives, based on recent events. 

Among the highlights from the year in review session:

  • Analysis of the GAO Report on "Medicaid: Financial Characteristics of Approved Applicants and Methods Used to Reduce Assets to Qualify for Nursing Home Coverage" released in late June 2014. Data collection efforts focused on four states and reportedly included "under cover" individuals posing as potential applicants. The report summarizes techniques used to reduce countable resources, most occuring well within the rules and thus triggering no question of penalty periods.  Whether Congress uses the report in any way to confirm or change existing rules remains to be seen.
  • A GAO Report on Medicaid Managed Care programs, also released in June, concluding that  additional oversight efforts are needed to ensure the integrity of programs in the states, which are already reporting higher increases in outgoing funds than fee-for-service programs.
  • The need to keep an eye open for Pennsylvania's Long Term Care Comission report, expected by December 2014. Will it take issue with the Governor's rejection of the Affordable Care Act's funding for expansion of Medicaid?
  • Report on a number of lower court decisions involving nursing home payment issues, including a report on a troubling case, Estate of Parker, 4 Pa. Fiduciary Reporter 3d 183 (Orphans' Court, Montgomery County, PA 2014), in which a court-appointed guardian of the estate of an elderly nursing home patient "agreed" to entry of a judgment, not just for nursing home charges, but also for pre- and post-judgment interest, plus attorneys' fees for the nursing home's lawyer of almost 20% of the stipulated judgment, in what was an uncontested guardianship. 

In light of the number of nursing home payment cases in Rob's review, perhaps it wasn't a surprise that my co-presenter, Stanley Vasiliadis, and I had a full house for our session on "Why Am I Being Sued for My Parents' Nursing Home Bill?" We examined how adult children (and sometimes elderly parents of adult children in care) are finding themselves the target of collection efforts by nursing homes, including actions based on theories of breach of promise (contract, quatum meruit, and promissory estoppel), fault (common law fraud or statutory claims of "fraudulent transfers), or family status, such as statutory filial support.

The extensive course materials from all of the presenters, both in hard copy and electronic formats, are available for purchase directly from the Pennsylvania Bar Institute

July 28, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, July 24, 2014

The Five Halves of Elder Law

The CarTalk Guys on National Public Radio have a crazy tradition of breaking their one hour radio program into "three halves" (okay, they have a lot of crazy traditions -- I'm focusing on just one).  In that tradition, I'd been thinking about how the practice of "elder law" might also have three halves, but then I realized  that perhaps it really has five halves.  See what you think.

  • In the United States, private practitioners who call themselves "Elder Law Attorneys" usually focus on helping individuals or families plan for legal issues that tend to occur between retirement and death.  Many of the longer-serving attorneys with expertise in this area started to specialize after confronting the needs of their own parents or aging family members. They learned -- sometimes the hard way -- about the need for special knowledge of Medicare, Medicaid, health insurance and the significance of frailty or incapacity for aging adults.  They trained the next generations of Elder Law Attorneys, thereby reducing the need to learn exclusively from mistakes.

 

  • Closely aligned with the private bar are Elder Law Attorneys who work for legal service organizations or other nonprofit law firms.  They have critical skills and knowledge of  health-related benefits under federal and state programs.  They also have sophisticaed  information about the availability of income-related benefits under Social Security.  They often serve the most needy of elders.  Their commitment to obtain solutions not just for one client, but often for a whole class of older clients, gives them a vital role to play. 

 

  • At the state and federal levels, core decisions are made about how to interpret laws affecting older adults.  Key decisions are made by attorneys who are hired by a government agency. Their decisions impact real people -- and they keep a close eye on the financial consequences of permitting access to benefits, even if is often elected officials making the decisions about funding priorities. I would also put prosecutors in this same public servant "Elder Law" category, especially prosecutors who have taken on the challenge of responding to elder abuse. 

 

  • A whole host of companies, both for-profit and nonprofit, are in the business of providing care to older adults, including hospitals, rehabilitation centers, nursing homes, assisted living facilities, group homes, home-care agencies and so on -- and they too have attorneys with deep expertise in the provider-side of "Elder Law," including knowledge of  contracts, insurance and public benefit programs that pay for such services.

 

  • Last, but definitely not least, attorneys are involved at policy levels, looking not only to the present statutes and regulations affecting older adults, but to the future of what should be the legal framework for protection of rights, or imposition of obligations, on older adults and their families.  My understanding and appreciation of this sector has increased greatly over the last few years, particularly as I have come to know human rights experts who specialize in the rights of older persons.

Of course, lawyers are not the only persons who work in "Elder Law" fields and it truly takes a village -- including paralegals, social workers, case workers, health care professionals, and law clerks -- to find ways to use the law effectively and wisely. Ironically, at times it can seem as if the different halves of "elder law" specialists are working in opposition to each other, rather than together. 

My reason for trying to identify these "Five Halves" of Elder Law is that, as with most of us who teach courses on elder law or aging,  I have come to realize I have former students working in all of these divisions, who began their appreciation for the legal needs of older adults while still in law school.  Organizing these "halves" may also help in organizing course materials.

I strongly suspect I'm could be missing one or more sectors of those with special expertise in Elder Law.  What am I forgetting?   

July 24, 2014 in Cognitive Impairment, Consumer Information, Crimes, Health Care/Long Term Care, Housing, Medicaid, Medicare, Other, Social Security | Permalink | Comments (1) | TrackBack (0)

Sunday, July 20, 2014

17th Annual Elder Law Institute in Pennsylvania: Packed Program on July 24-25

The growing significance and scope of "elder law" is demonstrated by the program for the upcoming 2014 Elder Law Institute in Philadelphia, Pennsylvania, to be held on July 24-25.  In addition to key updates on Medicare, Medicaid, Veterans and Social Security law, plus updates on the very recent changes to Pennsylvania law affecting powers of attorney, here are a few highlights from the multi-track sessions (48 in number!):

  • Nationally recognized elder law practitioner, Nell Graham Sale (from one of my other "home" states, New Mexico!) will present on planning and tax implications of trusts, including special needs trusts;
  • North Carolina elder law expert Bob Mason will offer limited enrollment sessions on drafting irrevocable trusts;
  • We'll hear the latest on representing same-sex couples following Pennsylvania's recent court decision that struck down the state's ban on same-sex marriages;
  • Julian Gray, Pittsburgh attorney and outgoing chair of the Pennsylvania Bar's Elder Law Section will present on "firearm laws and gun trusts."  By coincidence, I've had two people this week ask me about what happens when you "inherit" guns.

Be there or be square!  (Who said that first, anyway?)     

July 20, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, June 9, 2014

What is the Role of the Judiciary in Settlement of Medicare Provider-Fraud Cases?

Last week, the Second Circuit Court of Appeals ruled that a district court's rejection of a proposed Securities and Exchange Commission (SEC) settlement for $285 million -- because of the absence of any admissions by defendant Citigroup -- was improper.  In SEC v. Citigroup Global Markets, a case that arose from investigations into fraud following the financial industries meltdown, the Second Circuit observed that while the court has an obligation to review consent degrees to determine generally the "legality" of the terms and may consider whether the settlement is "fair and reasonable, to demand admissions as a condition of settlement goes too far. 

The Second Circuit said, "It is an abuse of discretion to require, as the district court did here, that the S.E.C. establish the 'truth' of the allegations against a settling party as a condition for approving the consent decrees.... Trials are primarily about the truth. Consent decrees are primarily about pragmatism.... Consent decrees provide parties with a means to manage risk." 

In cases where injunctive relief is part of the settlement, the Second Circuit said the trial court is permitted to analyze the enforceability of the terms, as a matter of "public interest." 

The Wall Street Journal, in reporting on the June 4 decision, observed that the decision "eases pressure" on prosecutors and regulators "to exact admissions of wrongdoing in settlements with companies."

After reading the SEC-related decision, it would seem the same reasoning would govern settlements of federal Medicare and Medicaid fraud suits, including whistleblower cases, such as the multi-million dollar settlements in recent months involving nursing home care, pharmaceutical sales, and hospice, thus explaining how millions in de facto fines often involve no admissions of wrongdoing. 

Or as I sometimes describe such agreements to settle, defendants must decide whether they can live with the financial effect of the monetary terms, and must promise merely to never do again what they say they never did before. 

But I worry, will customers -- which in Medicare and Medicaid cases, usually means seniors and disabled persons -- be the ones who pay the downstream price of the settlement, especially without clear admissions of wrongdoing in the past?  

June 9, 2014 in Ethical Issues, Federal Cases, Federal Statutes/Regulations, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Friday, June 6, 2014

Is Community Spouse's IRA Countable in Determining Medicaid Eligibility? Arkansas Supreme Court Says "Yes"

In Arkansas Department of Human Services v. Pierce, the Arkansas Supreme Court ruled on May 29 that individual retirement accounts owned by a wife were "countable" in determining her husband's eligibility for Medicaid as a resident in a nursing home in Arkansas.  In so ruling, and treating the issue as a matter of first impression in Arkansas, the Court rejected the analysis of a Wisconsin court, and aligned itself with the analysis of a New Jersey Court in determining that the state's decision -- to include IRAs owned by either spouse in the "snapshot" of resources subject to spend-down -- did not violate federal law.

In this case, the community spouse may be significantly affected, depending on her own lifespan. Hoping that her husband of 46 years would improve and not need to stay in a nursing home, it appears she had already paid "privately" for nursing home care for 18 months.  With the ruling, if her husband continues to need nursing care, she will be allowed to keep $109,560, and thereby will likely spend much of her IRA savings (totaling about $350,000) towards his care.   

This fact pattern arguably explains one of the reasons why Elder Law professionals have turned to Medicaid-qualified annuities and other permitted planning tools, to convert countable "resources" into uncountable "income," thereby better assisting the community spouse in financing his or her own final years, particularly if the community spouse hopes to stay at home as long as possible.  Will community spouses get timely, qualified assistance with such planning? 

June 6, 2014 in Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Center for Medicare Advocacy files suit against HHS for Medicare appeals problems

The Center for Medicare Advocacy’s 'Rubber Stamp' suit highlights the fact that 98% of Medicare appeals are denied at the first two levels of review

June 5, 2014 – The Center for Medicare Advocacy filed a complaint in United States District Court in Connecticut yesterday against Kathleen Sebelius, Secretary of Health and Human Services, on behalf of plaintiffs who have been denied a meaningful review of their Medicare claims at the first two levels of appeal. The case was brought as a class action, and the four named plaintiffs represent thousands of Medicare beneficiaries in Connecticut who cannot get a meaningful review of their case, and instead, receive an initial denial of coverage that is essentially “rubber stamped” at both the Redetermination and Reconsideration levels. The problem persists throughout the country.

Available information indicates that the combined denial rate for home health care coverage (that the plaintiffs in this case were denied) at the first two levels of review is about 98%.  However, beneficiaries must complete those levels before they can get a hearing with an Administrative Law Judge (ALJ), which provides the first real opportunity for a meaningful evaluation of a claim.

"Older people and people with disabilities are going without necessary care because they’re being wrongly denied coverage and either drop out of the years-long appeals process, waiting for a hearing, or impoverish themselves to pay for care,” said Gill Deford, Litigation Director at the Center for Medicare Advocacy. “The sheer number of beneficiaries who are forced to deal with this time-consuming, meaningless appeals structure compelled us to take action to seek meaningful reviews earlier in the appeals process."

The denial rate at Redetermination and Reconsideration has been increasing in recent years, coinciding with the implementation of a new administrative review process for "traditional" Medicare (Parts A and B). While the new system was intended to make the process more efficient and user-friendly, the actual effect has been to deny beneficiaries an efficient and meaningful review of their claims, requiring them to take claims to the third level of review, an ALJ hearing.

"Most beneficiaries don’t have the resources, time or support to take their claims all the way to an Administrative Law Judge, making the first two levels of review vitally important,” said Judith Stein, Executive Director of the Center for Medicare Advocacy. "'Rubber-stamping' appeals deprives a huge number of people a legitimate review process and harms those who depend on Medicare coverage for critical health care and to maintain their quality of life."

To speak with a representative of the Center for Medicare Advocacy about this case, please contact Lauren Weybrew at lweybrew@douglasgould.com

June 6, 2014 in Federal Statutes/Regulations, Medicare | Permalink | TrackBack (0)

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)

Saturday, May 31, 2014

Representatives introduce Medicare Transitional Care Act

Representatives Earl Blumenauer (OR-03) and Tom Petri (WI-06) ihave recently ntroduced the bipartisan Medicare Transitional Care Act, which will support and coordinate care for Medicare beneficiaries as they move from the hospital setting to their homes or other care setting, and ensure that appropriate follow-up care is provided during this vulnerable period.  The benefit is flexible, supporting a number of much-needed care models including improved assessment, planning, medications management, movement between care levels, and coordination of support services such as meals and medical equipment.
 
“Transitions from hospital to home can be complicated and risky, especially for individuals with multiple chronic illnesses,” said Blumenauer. “There’s a lot of confusion and uncertainty over instructions, medications, and prognosis. Our bill will support people coming out of the hospital so they don’t just wind up right back in, which is expensive and dangerous.”
 
“It doesn’t make sense to have a program that only provides part of the care Medicare patients need just to have them become sick again as soon as they leave the hospital,” said Petri.  “Providing greater support for Medicare patients as they transition from the hospital back home would improve their health and quality of life while saving taxpayers’ money.”
 
“As providers seek to improve patient outcomes through more coordinated care, Congress must continue to look for effective policies that address gaps in care for our most vulnerable patients, and improving transitions between care settings is critical to that effort,” said National Transitions of Care Coalition Executive Director, Cheri Lattimer. “The Medicare Transitional Care Act puts in place necessary infrastructure and incentives to foster care transition interventions, with collaborative team approaches that have proven successful, which will lead to better health outcomes for beneficiaries and offer real cost savings for patients, the health care system and taxpayers.”
 
Researchers with the Robert Wood Johnson Foundation have estimated that inadequate care coordination, including inadequate management of care transitions, was responsible for $25 to $45 billion in wasteful spending in 2011 through avoidable complications and unnecessary hospital readmissions.
 
The Medicare Transitional Care Act is supported by organizations including The National Transitions of Care Coalition, American Society of Aging, Caregiver Action Network, Case Management Society of America, Society for Post-Acute and Long-Term Care Medicine, Hudson Health Plan, Rush University Medical Center, and Sanofi.
 

May 31, 2014 in Federal Statutes/Regulations, Medicare | Permalink | 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)

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)

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)

Saturday, April 26, 2014

Male MDs earn more than females in Medicare payments

Via CNBC:

Male doctors on average make 88 percent more in Medicare reimbursements than female physicians, according to an analysis of recently released government data, which suggests that the gender of a medical provider could play a role in the number of services they provide patients.  NerdWallet research found that male physicians on average were paid $118,782 in Medicare reimbursements by the federal government in 2012, compared with $63,346 for women doctors.  The difference is particularly striking because Medicare—the government's health insurance program for people 65 and older—pays men and women doctors the same amount for the individual services they perform on patients in the same geographic area.  But the reasons for that very wide gap in total reimbursements included the fact that male doctors on average saw 60 percent more Medicare patients than their female counterparts.  Men saw 512 patients on average, versus 319 for women.

Read more here.

April 26, 2014 in Medicare | Permalink | TrackBack (0)

Tuesday, March 25, 2014

KFF: Summary of Medicare Provisions in the President’s Budget for Fiscal Year 2015

 

On March 4, 2014, the Office of Management and Budget released President Obama’s budget for fiscal year (FY) 2015, which includes provisions related to federal spending and revenues, including Medicare savings.  The President’s budget would use federal savings and revenues to reduce the deficit and replace sequestration of Medicare and other federal programs for 2015 through 2024.  This brief summarizes the Medicare provisions included in the President’s budget proposal for FY2015.

 

The President’s FY2015 budget would reduce Medicare spending by more than $400 billion between 2015 and 2024, accounting for about 25 percent of all reductions in federal spending included in the budget.  Most of the Medicare provisions in the FY2015 budget are similar to provisions that were included in the Administration’s FY2014 budget proposal.  The proposed Medicare spending reductions are projected to extend the solvency of the Medicare Hospital Insurance Trust Fund by approximately five years.

 

  • More than one-third (34%) of the proposed Medicare savings are due to reductions in payments for prescription drugs under Medicare Part B and Part D.  The single largest source of Medicare savings would require drug manufacturers to provide Medicaid rebates on prescriptions for Part D Low Income Subsidy enrollees, a proposal which was also included in the President’s FY2014 proposed budget.
  • One-third (33%) of the proposed Medicare savings are due to reductions in Medicare payments to providers, most of which are reduced payments to post-acute care providers (Figure 1).  The baseline of the proposed budget assumes no reduction in Medicare payments for physician services, relative to current levels, from 2015 through 2024, in contrast to the sustainable growth rate formula (SGR) under current law, which calls for significantly lower physician payments during this 10-year period.  The projected cost for adjusting the baseline for this period is $110 billion, plus additional amounts associated with eliminating cuts in 2014.
  • About 16 percent of the proposed Medicare savings are due to increases in beneficiary premiums, deductibles and cost-sharing.

Read more here.

 

March 25, 2014 in Health Care/Long Term Care, Medicare, Other | Permalink | TrackBack (0)

Tuesday, March 11, 2014

HHS OIG says that Less Than Half of Part D Sponsors Voluntarily Reported Data on Potential Fraud and Abuse

U.S. Department of Health and Human Services, Office of the Inspector General

Report (OEI-03-13-00030) 03-03-2014
Less Than Half of Part D Sponsors Voluntarily Reported Data on Potential Fraud and Abuse

Summary:   In 2011, total expenditures for the Medicare Part D prescription drug program were $67.1 billion. CMS contracts with plan sponsors to provide Part D coverage to beneficiaries. The Office of Inspector General has recommended that CMS require sponsors to report data on potential fraud and abuse related to Part D to CMS. Rather than requiring these data, CMS encouraged sponsors to voluntarily report them beginning in 2010. This study provides information on the fraud and abuse data reported by sponsors and on whether CMS used these data to monitor or oversee the Part D program. 

OIG  accessed CMS's Healthcare Plan Management System to download data on potential fraud and abuse reported by Part D plan sponsors from 2010 through 2012. It also accessed CMS's public files of Part D enrollment to determine the number of beneficiaries enrolled in Part D plans from 2010 through 2012. OIG reviewed the sponsors' aggregate data to determine the number and percentage of sponsors that reported data on potential fraud and abuse each year. In addition, it  surveyed CMS about its review and use of these reported data. 

More than half of Part D plan sponsors did not report data on potential fraud and abuse between 2010 and 2012. Of those sponsors that did report data, more than one-third did not identify any incidents for at least one of their reporting years. In total, sponsors reported identifying 64,135 incidents of potential fraud and abuse between 2010 and 2012. Sponsors' identification of such incidents varied significantly, from 0 to almost 14,000 incidents a year. CMS requires sponsors to conduct inquiries and implement corrective actions in response to incidents of potential fraud and abuse; however, 28 percent of Part D plan sponsors reported performing none of these actions between 2010 and 2012. Although CMS reported that it conducted basic summary analyses of the data on potential fraud and abuse, it did not perform quality assurance checks on the data or use them to monitor or oversee the Part D program.

OIG recommends that CMS (1) amend regulations to require sponsors to report to CMS their identification of and response to potential fraud and abuse; (2) provide sponsors with specific guidelines on how to define and count incidents, related inquiries, and corrective actions; (3) review data to determine why certain sponsors treported especially high or low numbers of incidents, related inquiries, and corrective actions; and (4) share sponsors' data on potential fraud and abuse with all sponsors and law enforcement. CMS did not concur with the first recommendation, partially concurred with the second and fourth recommendations, and concurred with the third recommendation.

Download the complete report.

March 11, 2014 in Health Care/Long Term Care, Medicare | Permalink | TrackBack (0)

Wednesday, March 5, 2014

Upcoming Webinar on Medicare Observation Status and Improvement Standard in Skilled Nursing Facilities: What Advocates and Consumers Need to Know

 

When: Thursday, March 13, 2014 • 3:00pm - 4:30pm EST

Speaker: Toby S. Edelman, Senior Policy Attorney, Center for Medicare Advocacy, Inc.

After briefly reviewing requirements for Medicare coverage of a stay in a skilled nursing facility, this webinar will discuss in depth how to overcome two obstacles to coverage – observation status and the myth of medical improvement. Observation status occurs when hospitals label patients as “outpatient” when they are hospitalized, often for multiple days, depriving them of the three-day inpatient status that is necessary for Medicare coverage in a SNF. Regarding the improvement standard, the settlement in the Vermont lawsuit Jimmo v. Sebelius confirms that Medicare pays for “maintenance” nursing and therapy for nursing home residents, dispelling the myth that Medicare pays for care only when a resident will “improve.” Learn how to advocate effectively for Medicare beneficiaries, and where advocates and consumers can get help.

This webinar is open to all!

Cost: $50.00 Registration for Live Webinar (includes mp3 recording) • $15.00 Webinar recording only (mp3, by email).

Register Today

March 5, 2014 in Medicare, Webinars | Permalink | 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)

Thursday, February 13, 2014

Proposal To Change Medicare's 'Observation Status' Gains Congressional Support

Via Kaiser Health News and sources referenced therein:

After years of trying, Rep. Joe Courtney, D-Conn., says he is optimistic that Congress will change the Medicare policy that has left thousands of patients without coverage for nursing home care after leaving the hospital.

The CT Mirror: After years of trying, U.S. Rep. Joe Courtney, D-2nd District, said Tuesday he’s optimistic that Congress will take action to address a technicality that has left thousands of Medicare patients without coverage for nursing home care after leaving the hospital. At issue is how Medicare treats patients designated by hospitals as being on “observation status.” Medicare’s hospitalization benefit covers nursing home care for patients recovering from a hospital stay, if they have spent at least three consecutive days as inpatients in a hospital. But increasingly, hospitals have been designating patients as being on observation status, even if they receive inpatient care and spend several nights in the hospital (Becker, 2/11).

CQ HealthBeat: As Rep. Joe Courtney, D-Conn., sees it, more of his colleagues are becoming aware of the ill effects that can occur when hospitals tell Medicare that a person who spent days being treated within their walls was not an “inpatient.” Courtney and many advocacy groups say that when hospitals instead slot patients as receiving “observation” services, that can deprive them of needed follow-up skilled nursing care. Or, it can cost them dearly if they use these services as after a hospital stay (Young, 2/11).

Read more here.

For lots of great information on the observation status issue, visit the Center for Medicare Advocacy's observation status resource area

February 13, 2014 in Federal Cases, Federal Statutes/Regulations, Medicare | Permalink | TrackBack (0)