Monday, November 28, 2016
The National Consumer Voice For Quality Long-Term Care has released a fact sheet explaining the changes to the Federal Nursing Home Regulations. The 15 page fact sheet " provides a brief overview of key changes in the sections on Resident Rights; Freedom from Abuse, Neglect, and Exploitation; and Admission, Transfer and Discharge that will go into effect in Phase 1. The purpose of the summary is to highlight what is different between the prior rule and the final rule." The fact sheet is organized by sections of the CFR and explains what is amended and what is new./ Print this out and save it. It's invaluable!
here.Last month the Commonwealth Fund published an issue brief about the correlation between Medicare beneficiaries with Physical and/or cognitive impariments and the connection to Medicaid and nursing home placements. With all the talk about changes to Medicare and Medicaid, this is a timely topic (but it always is timely), Risks for Nursing Home Placement and Medicaid Entry Among Older Medicare Beneficiaries with Physical or Cognitive Impairment. Here is the abstract:
Issue: More than half of individuals who age into Medicare will experience physical and/or cognitive impairment (PCI) at some point that hinders independent living and requires long-term services and supports. As a result of Medicare’s limits on covered services, Medicare beneficiaries with PCI experience financial burdens and reduced ability to live independently. Goal: Describe the characteristics and health spending of Medicare beneficiaries with PCI and estimate the likelihood of Medicaid entry and long-term nursing home placement. Methods: The Health and Retirement Study 1998–2012 is used to estimate long-term nursing home placement, as well as Medicaid entry. The Medicare Current Beneficiary Survey 2012 provides information on health care spending and utilization. Key findings and conclusions: Almost two-thirds of community-dwelling Medicare beneficiaries with PCI have three or more chronic conditions. More than one-third of those with PCI have incomes less than 200 percent of the federal poverty level but are not covered by Medicaid; almost half spend 10 percent or more of their incomes out-of-pocket on health care. Nineteen percent of individuals with PCI and high out-of-pocket costs entered Medicaid over 14 years, compared to 10 percent without PCI and low out-of-pocket costs.
The brief offers background, data and analysis. For expediency, I've included the conclusion here. I recommend you read the entire brief.
This analysis finds that:
- A third of older adults have PCI in a given year; more than half of adults who age into Medicare will experience PCI over the remainder of their lifetimes. While the majority of older adults with PCI live in the community, they are at high risk for costly, long-term nursing home placement.
- Individuals with PCI often have multiple chronic conditions, resulting in high Medicare expenses and out-of-pocket spending. Those with high out-of-pocket spending as a proportion of income as well as PCI were at greater risk for spending down their resources and entering into Medicaid over a 14-year period, compared to those with PCI but without high out-of-pocket spending.
- The risk for Medicaid entry was greater for those at lower income levels at the beginning of the 14-year period. However, 14 percent of the highest-income group at baseline with high out-of-pocket spending and PCI entered Medicaid by the end of the follow-up period.
Improving financing for home and community-based care would help many beneficiaries with PCI continue to live independently and support families in helping them obtain the care they prefer. Our current health care system, which covers costly institutional services but not social support in the home, distorts the way Americans receive care as they age and die. After people with serious impairment become impoverished and qualify for Medicaid, they are covered for long-term nursing facility care. However, personal care services at home that might have prevented them from needing to turn to Medicaid or enter a nursing home are not covered by Medicare.
Intervening early to prevent nursing home placement and Medicaid enrollment may produce offsetting savings in Medicare and Medicaid. An accompanying brief describes two innovative approaches to providing long-term services and support benefits: a voluntary, supplemental benefit for home and community-based services for Medicare beneficiaries; and an expansion of the Medicaid Community First Choice program for people with incomes up to 200 percent of poverty. Both options show promise of maintaining independent living longer and avoiding costly long-term institutionalization and exhaustion of resources that result in Medicaid enrollment.
The brief is also available as a pdf here.
Wednesday, November 16, 2016
A colleague yesterday sent me a link to a story about Speaker Ryan's plan to introduce cuts to Medicare (or eliminate it in its current form as we know it). (Of course, this was after the class where we had just finished covering Medicare). All I could think was, not again.... By not again, I meant here is another proposal heading to Congress to change (or eliminate) one of the entitlement programs. We've weathered the proposals to change Social Security (Remember the Commission appointed by President George W. Bush?). Now it's Medicare.
There is information on Speaker Ryan's website about his plan to change Medicare. A series of articles have popped up in the last few days as a result of his recent interview appearing on Fox. In Talking Points Memo, Ryan Plans to Phase Out Medicare in 2017, the transcript of the interview appears. Here's a quote:
What people don't realize is because of Obamacare, medicare is going broke, medicare is going to have price controls because of Obamacare, medicaid is in fiscal straits. You have to deal with those issues if you are going to repeal and replace obamacare. Medicare has serious problems [because of] Obamacare. Those are part of our plan.
The article describes his position as a phase-out of Medicare, although current beneficiaries keep Medicare.
Money magazine also ran an article, questioning the Speaker's assertion that Medicare is going broke. Is Medicare Really Going Broke, Like Paul Ryan Says?
Here’s the thing: Medicare is on an unsustainable spending path, but it’s not going broke. “The idea that we have a crisis is just nonsense,” says Dr. Robert Berenson, a fellow at the Urban Institute, a nonpartisan research organization, and formerly an official at the Centers for Medicare and Medicaid Services. And Obamacare is not the culprit for Medicare’s fiscal woes.
The article notes that his plan proposes
changes [that] generally fall under the terms “privatization,” or “premium support.” While it remains unclear exactly what this would look like, it may mean giving beneficiaries some sort of fixed dollar amount to buy their own private insurance as an alternative to, or even replacement for, original Medicare... Under this type of system, beneficiaries who choose the lowest-cost coverage will stretch their government subsidy the farthest—which ironically, is how Obamacare works today.
The Washington Post ran an article about it, focusing on whether this is an "opportunity" for the Democrats, Paul Ryan’s plan to phase out Medicare is just what Democrats need. The Washington Post article offers a sobering assessment
If Ryan gets his way, Medicare as a universal insurance program will cease to exist. It will be replaced by “premium support,” or vouchers which seniors will use to buy private insurance. If you can’t afford any of the available plans with what the voucher is worth, tough luck. The whole point is to transfer the expense from Medicare to the seniors themselves. Half a century after Medicare brought health security to America’s seniors, Republicans would snuff it out, leaving some unknown number without any coverage at all and breaking the fundamental promise the government made.
Serious bummer folks.
Monday, November 14, 2016
CMS announced the 2017 premiums on November 10, 2016. Since the 2017 SSA COLA is so low, the hold harmless provision will kick in for many. For the Part B premium, most will pay $109.00 because of the "hold harmless" while others will pay $134. The income adjusted part B premium for higher income beneficiaries starts at $187.50 and tops out at $428.60 for a single person. The 2017 annual Part B deductible will be $183.
The Part A inpatient hospital deductible for 2017 will be $1,316, and the SNF co-pay for days 21-100 will be $164.50 in 2017. More of the 2017 figures are available here.
Sunday, November 13, 2016
As I've spent several recent weeks of my sabbatical in Arizona to be closer to my 90+ year old parents, I watched the run up to the election from this Southwestern vantage point, instead of my usual Pennsylvania location. Not only was I surprised by the result of the Pennsylvania vote, it was a surprise to see Arizona voters -- usually a Republican stronghold with a strong "senior" vote-- struggle with the election choices available to them.
On November 8, Arizona rejected legalization of recreational marijuana (predictable) and approved a significant increase of minimum wage (a closer call, as the business community in Arizona largely opposed that increase). Further, Trump had angered some by throwing shade on 80-year-old Senator John McCain's "hero" reputation. In contrast, Trump's seeming alliance with controversial Sheriff Joe Arpaio, despite the later's pending criminal contempt prosecution, gave other Arizonans pause. Ultimately, 84-year-old Arpaio was voted "out" in Arizona (but, it remains to be seen whether he will be "out" of government at the federal level too). In other words, Arizonans were not voting in support of a "pure" Republican platform.
My mom, a Democrat but a somewhat reluctant Hillary supporter, was glued to CNN for much of the summer and fall, and she accurately predicted the Trump victory despite the pollsters' and commentators' refusal to acknowledge the frustrations driving the Trump tidal. She insisted on voting on election day, rather than taking advantage of Arizona's early vote options.
We know little about how Donald Trump will prioritize and govern once he takes the reins of his very first elected position. That uncertainty makes many nervous even as it makes others hopeful.
What will a Trump Administration mean for aging Americans? Some topics to consider:
- Public Retirement Benefits: Candidate Trump -- rarely one to get into the details of policy issues -- seemed o make a distinction between age-based benefits, including Social Security retirement and Medicare health insurance coverage, and disability-based benefits. Congress may seize on the latter. Trump argued "more jobs, less waste" was a cure for the solvency questions. On the one hand, he says he would support privatizing "some portion" of Social Security savings or investments to allow individuals to self-invest, while on the other hand rejecting "government" in the role of the retirement"investor." He seems willing to consider means testing for payment of retirement benefits. Here's a link to several utterances of Donald Trump on the topic of Social Security.
- Health Care for Seniors: Unlike ObamaCare in general, it will probably be harder for Donald Trump and Congress to displace the fundamentals of Medicare for seniors. But real cost questions attend health care for seniors. At what point will Trump be hit with the reality that all of his campaign plans about immigration, walls, foreign trade and infrastructure pale in comparison to the true challenges facing an aging American on health care?
- Medicaid for Long-Term Care: Candidate Trump has probably not focused on Medicaid as a source of long-term care financing. With Republicans controlling the House and Senate, however, will the old "anti-Medicaid planning" forces feel newly energized?
- Consumer Protections for Older Americans: Candidate Trump will feel the pressure from Republican-controlled Congress to roll back administrative safeguards implemented by President Obama during the last two years. Perhaps here is where seniors may feel the quickest impact from the change in power, including potential rollbacks on consumer protection measures that attempted to bar pre-dispute binding arbitration "agreements" for nursing home residents, implemented fiduciary duty standards for investment advisors, and imposed closer scrutiny on consumer credit companies. Indeed, the most direct threat of the Trump Administration, combined with the Republican Congress, is likely to be to "Elizabeth Warren's Consumer Financial Protection Bureau."
How this all plays out will be "interesting," won't it? The points above are about today's generation of seniors. Perhaps the most important Trump impact will be for "future" seniors, especially if Trump's predicted roll back on environmental protections and his advisors' seeming rejection of climate science hold sway.
Friday, November 11, 2016
Save the Date: February 23, 2017, the 6th Annual Health Law Conference at Florida State University. This year's conference is titled Patients as Consumers: The Impact of Health Care Financing & Delivery Developments on Roles, Rights, Relationships & Risks. The program's learning objectives include
Appreciate the ways in which the role of the individual who is purchasing and receiving health care services is changing from one of passive patient to that of a consumer who is expected to influence, if not determine, his or her own health care
Understand the legal and ethical ramifications of the individual’s changing role from patient to consumer for the physician and other health care providers with whom the patient/consumer maintains a professional relationship
Manage the physician’s legal responsibilities and risks associated with the changing professional relationship engendered by expectations that patients will take on a more consumer-like role regarding their own health car
Identify major developments (e.g., aggressive consolidation of health care insurers and providers into mega-entities, the incentivized development of new coordinated product delivery entities such as Accountable Care Organizations, the proliferation of electronic health records, and replacement—on both mandatory and voluntary bases—of fee-for-service arrangements by various value purchasing strategies such as Pay for Performance (P4P) and bundled payments) in contemporary U.S. health care delivery and financing
Topics include Evidence-based Medicine & Shared Decision-making, Impact of Cost Containment Initiatives on Patient Rights and Provider Liabilities, and Patient Populations at Particular Risk of Not Controlling Their Own Medical Choices.
Registration is free unless seeking CLE credits. For more information or registration, click here.
Monday, November 7, 2016
A federal district court in Mississippi has entered an injunction prohibiting the CMS rule against pre-dispute arbitration from taking effect at the end of this month. According to a story on NPR, "[t]he reason for granting the injunction, the court explained in its order, is that it believes the new rule represents "incremental 'creep' of federal agency authority" — in this case the Centers for Medicare & Medicaid Services — 'beyond that envisioned by the U.S. Constitution.'"
The 40 page order is available here.
Monday, October 31, 2016
SSA announced recently that there would be a COLA for 2017, but it is a teensy COLA, actually, a .03% increase. Big gap between Social Security cost-of-living adjustment and retiree inflation offers a critical look at the 2017 COLA compared to inflation and how the government calculates the COLA using the consumer price index. An article in USA Today about the 2017 COLA noted that this COLA won't allow beneficiaries to get ahead, even slightly. Instead, they will likely lose ground, because of the Medicare Part B premium costs
The nation’s 65 million Social Security beneficiaries will receive a paltry 0.3% cost-of-living adjustment to their monthly checks in 2017, the government announced Tuesday. In dollars and cents, it means the average retired beneficiary’s check will rise about $5 to $1,360 per month in 2017.
The even more bitter pill: Many current Medicare beneficiaries won’t be able to spend any of that extra money. Instead, they’ll likely have to send their COLA straight back to Uncle Sam to cover higher Medicare Part B premiums.
Almost a third of Medicare's 56 million beneficiaries could see their premiums jump 22% next year, according to the Medicare Trustees Report, putting the cost at an estimated $149 per month. Those unlucky 30% of beneficiaries include people enrolling in Part B for the first time in 2017, people who are on Medicare but who aren't currently taking Social Security benefits and current enrollees who pay an income-related higher premium.
Wednesday, October 26, 2016
DOJ announced recently that it had settled a False Claims case against Life Care Centers of America Inc. (Life Care) and its owner, Forrest L. Preston. The defendants agreed to pay $145 million to settle a case where the Government claimed “that Life Care violated the False Claims Act by knowingly causing skilled nursing facilities (SNFs) to submit false claims to Medicare and TRICARE for rehabilitation therapy services that were not reasonable, necessary or skilled….” In addition, the defendant also signed a Corporate Integrity Agreement with the Office of Inspector General (HHS-OIG) for HHS. Under this 5 year agreement, “an independent review organization [will] … annually assess the medical necessity and appropriateness of therapy services billed to Medicare” by the defendant. The suit was brought pursuant to the whistleblower provision of the False Claims Act.
According to the suit, the defendant put corporate-wide procedures and polices into place that caused a maximum number of “beneficiaries in the Ultra High reimbursement level irrespective of the clinical needs of the patients, resulting in the provision of unreasonable and unnecessary therapy to many beneficiaries.” Further the defendant tried to keep SNF residents longer than needed so the defendant could continue to bill for rehab, even though the therapists concluded therapy should be ended. The defendant kept careful track of the therapy minutes per patient and the patient’s therapy days so that the maximum number of patients were at that “highest level of reimbursement for the longest possible period.”
According to an email I received, the amount of the settlement was partially based on statistical sampling.
Thanks to Laurence Hooper for emailing me.
Friday, October 21, 2016
LeadingAge, the trade association that represents nonprofit providers of senior services, begins its annual meeting at the end of October. This year's theme is "Be the Difference," a call for changing the conversation about aging. I won't be able to attend this year and I'm sorry that is true, as I am always impressed with the line-up of topics and the window the conference provides for academics into industry perspectives on common concerns. For example, this year's line up of workshops and topics includes:
- General sessions featuring Pulitzer Prize winning journalist Charles Duhigg on the "The Science of Productivity," 2013 MacArthur Fellow and psychologist Angela Duckworth on the the importance of grit and perservance for successful leadership, and famed neurosurgeon and speaker Sanjay Gupta on "Medicine and the Media."
- Hundreds of sessions, organized by "interest groups":
October 21, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Science, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (2)
Monday, October 10, 2016
Will New Federal Ban on Pre-Dispute "Binding" Arbitration Clauses in LTC Agreements Survive Likely Challenges?
My colleague Becky Morgan provided prompt links and important initial commentary for CMS's recently issued final regulations that are intended to "improve the quality of life, care, and services" in Long-Term Care (LTC) facilities. As we start to digest the 700+ pages of changes and commentary, it seems clear the battle over a key section that bans pre-dispute binding arbitration agreements is already shaping up. This rule, at 40 CFR Section 483.70(n), has an implementation date of November 28, 2016.
The regulatory ban on pre-dispute binding arbitration in covered facilities raises the question of "conflict" with the Federal Arbitration Act (FAA), 9 U.S.C. Section 1 et seq. The 2012 per curium ruling by the Supreme Court in Marmet Health Care Center, Inc. v. Brown, shapes the issue, if not the result.
CMS distinguishes Marmet and presents the rule change as based on authority granted under the Social Security Act to the Secretary of Health and Human Service to issue "such rules as may be necessary to the efficient administration of the functions of the Department," which necessarily includes supervision of all providers, including LTC providers, who "participate in the Medicare and Medicaid programs." CMS points to the long history of regulatory authority over LTC including long-celebrated "patient's rights" legislation adopted in the late 1980s. CMS further explains (at page 399 of the 700 page commentary to the new rules):
Based on the comments received in response to this rulemaking, we are convinced that requiring residents to sign pre-dispute arbitration agreements is fundamentally unfair because, among other things, it is almost impossible for residents or their decision-makers to give fully informed and voluntary consent to arbitration before a dispute has arisen. We believe that LTC residents should have a right to access the court system if a dispute with a facility arises, and that any agreement to arbitrate a claim should be knowing and voluntary. . . .
We recognize that an argument could be made that Medicare and Medicaid beneficiaries can assert in Court the FAA's saving clause if they believe that a pre-dispute arbitration agreement should not be enforced. However, the comments we have received have confirmed our conclusion that predispute arbitration clauses are, by their very nature, unconscionable. As one commenter noted, it is virtually impossible for a resident or their surrogate decision-maker to give fully informed or voluntary consent to such arbitration provisions. That same commenter 402 also noted that refusing to agree to the arbitration clause, in most cases, means that care will be denied.
Furthermore, Medicare and Medicaid beneficiaries are aged or disabled and ill. Many beneficiaries lack the resources to litigate a malpractice claim, much less an initial claim seeking to invalidate an arbitration clause. Rather than requiring Medicare and Medicaid beneficiaries to incur the additional fees, expense, and delay that would be the direct cost of opposing a motion to enforce arbitration, we have concluded that this is precisely the type of situation envisioned by the Congressional grant of authority contained in sections 1819(d)(4)(B) and 1919(d)(4)(B) of the Act authorizing the Secretary to establish "such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.”
By coincidence, just hours before the final LTC rules issued by CMS, the Pennsylvania Supreme Court enforced pre-dispute arbitration agreements for nursing home residents in Taylor v. Extendicare Health Facilities (decided September 28, 2016).
The LTC industry seems ready to fight, as reported by industry insiders at McKnight's News on September 29, 2016:
Both the American Health Care Association and LeadingAge expressed disappointment in the arbitration ban in statements provided to McKnight's.
“That provision clearly exceeds CMS's statutory authority and is wholly unnecessary to protect residents' health and safety,” said Mark Parkinson, president and CEO of AHCA.
LeadingAge has supported arbitration agreements that are “properly structured and allow parties to have a speedy and cost-effective alternative to traditional litigation,” but believes CMS has overstepped its boundaries with the ban, the group said.
“Arbitration agreements should be enforced if they were executed separately from the admission agreement, were not a condition of admissions, and allowed the resident to rescind the agreement within a reasonable time frame,” LeadingAge added in its statement.
Stay tuned -- but don't hold your breath as the next round is likely to take some time. My special thanks to Megan Armstrong, Class of 2018 at Dickinson Law, for sharing key links with me for our research on this important development.
October 10, 2016 in Consumer Information, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Sunday, October 9, 2016
The GAO issued a new report regarding the accessibility of SNF expenditure data. Skilled Nursing Facilities: CMS Should Improve Accessibility & Reliability of Expenditure Data was released October 6, 2016. Here is what the GAO found
The Centers for Medicare & Medicaid Services (CMS) ... collects and reports expenditure data from skilled nursing facilities (SNF), but it has not taken key steps to make the data readily accessible to public stakeholders or to ensure their reliability. SNFs are required to self-report their expenditures in annual financial cost reports, and CMS posts the raw data on its website. However, CMS has not provided the data in a readily accessible format and has not posted the data in a place that is easy to find on its website, according to public stakeholders and GAO's observations. In addition, CMS does little to ensure the accuracy and completeness of the data. Federal internal control standards suggest that agencies should make data accessible to the public and ensure data reliability. Until CMS takes steps to make reliable SNF expenditure data easier to use and locate, public stakeholders will have difficulty accessing and placing confidence in the only publicly available source of financial data for many SNFs.
GAO found that, for each fiscal year from 2011 through 2014, direct and indirect care costs were lower as a percentage of revenue, on average, at for-profit SNFs compared with nonprofit and government SNFs. Direct and indirect care costs were similarly lower at chain SNFs compared with independent SNFs. In addition, the median margin, which measures revenue relative to costs, was higher for for-profit and chain SNFs than for other SNFs in each of the 4 years.
The relationship between SNFs' nurse staffing levels (hours per resident day) and their margins varied by ownership type in each fiscal year from 2012 through 2014, the 3 years with complete staffing data. For-profit SNFs generally had lower nurse staffing ratios than did nonprofit and government SNFs. Examining each fiscal year separately, GAO estimated that a SNF's margin had a small, but statistically significant, effect on its case-mix adjusted (that is, adjusted for residents' health care needs) nurse staffing ratios. For example, for each percentage point increase in a for-profit SNF's margin in fiscal year 2014, GAO estimated that the SNF's total nurse staffing ratio (including registered nurses, licensed practical nurses, and certified nursing assistants) decreased by 4.1 minutes per resident day after controlling for other factors. However, in GAO's analyses, these other factors, such as geographic location, were more important predictors of a SNF's case-mix adjusted nurse staffing ratios.
A pdf of the report is available here.
Friday, October 7, 2016
The Kaiser Family Foundation ran a story, The Gap in Medigap focuses on the "gap" for those individuals with disabilities on Medicare who don't have Medigap policies. The gap is significant: "even with Medicare, beneficiaries under 65 with disabilities report greater difficulty accessing the care they need, sometimes because they cannot afford the cost. For some, this may be related to not having supplemental coverage, such as Medigap, to help with their out-of-pocket costs. In fact, a much smaller share of beneficiaries under 65 with disabilities than seniors have a Medigap policy (2% versus 17%, respectively), and a much higher share have no supplemental coverage whatsoever (21% versus 12%)."
Why the gap? Cost may be a factor, but the article offers another, compelling reason.
The substantially lower rate of Medigap coverage among under age 65 adults with disabilities may be due in large part to the provision in the federal law mentioned above that gives Medicare beneficiaries age 65 and older the right to purchase a Medigap policy during the first six months after they enroll in Medicare Part B and under other limited circumstances, but does not provide the same guarantee to younger people who are entitled to Medicare due to having a disability. According to the Centers for Medicare & Medicaid Services, 31 states have gone beyond the federal minimum standard to require insurers in their states to provide at least one kind of Medigap policy to beneficiaries younger than age 65, but the other 19 states and DC have not ....
The article also notes how things have changed since the law went into place over 25 years ago, including changes to the Medigap provisions of the Medicare statute. One of the big changes is that with Part D, Medigap policies no longer cover prescription drugs. So factoring out the Part D spending, the Kaiser story notes "Medicare per capita costs are similar for younger beneficiaries with disabilities and seniors...."
So why maintain the difference between those 65 and older and those under 65 with disabilities? Is it time for a change? The article suggests yes, that "it’s not clear what the justification is for treating younger adults with disabilities differently from older adults when it comes to buying a Medigap policy." The article proposes several benefits to changing the law which "could help to reduce the gap in Medigap coverage between younger and older beneficiaries, help alleviate cost-related access problems among the relatively small but vulnerable group of people under 65 who qualify for Medicare, and provide more equitable treatment to Medicare beneficiaries across the states."
Good food for thought! (and maybe a good topic for a student paper)
Thursday, September 29, 2016
I blogged yesterday about the new and updated regs for nursing homes and highlighted a few changes. One that is getting attention is the reg regarding pre-dispute arbitration clauses, mentioned in yesterday's post. The NY Times ran an article, U.S. to Bar Arbitration Clauses in Nursing Home Contracts offers some examples of individuals who were injured but not able to seek redress in the courts. The article notes that this is the first significant revision to the FNHRA regs in a while, and also another federal agency moving to limit the use of arbitration clauses. "It is the most significant overhaul of the agency’s rules governing federal funding of long-term care facilities in more than two decades...And the new rule is the latest effort by the Obama administration to rein in arbitration’s parallel system of justice that was quietly built over more than a decade...In May, the Consumer Financial Protection Bureau, the nation’s consumer watchdog, unveiled the draft of a rule that would prevent credit card companies and other financial firms from using arbitration clauses that bar consumers from banding together in a class-action lawsuit." The article also references prior stories by the Times that focused on arbitration, the links to which are available at the end of the story.
Wednesday, September 28, 2016
The Federal Nursing Home Reform Act went into effect back in 1987. Those accompanying regs have been in place a long time. Now CMS has issued final rules that revise the LTC regs. The official publication date is Oct. 4, 2016. The regs are being implemented in phases, with phase one going into effect on November 28, 2016. Here is the Federal Register summary:
This final rule will revise the requirements that Long-Term Care facilities must meet to participate in the Medicare and Medicaid programs. These changes are necessary to reflect the substantial advances that have been made over the past several years in the theory and practice of service delivery and safety. These revisions are also an integral part of our efforts to achieve broad-based improvements both in the quality of health care furnished through federal programs, and in patient safety.
The regs are over 700 pages and are available here. Here are the effective dates: "Phase 1 must be implemented by November 28, 2016... Phase 2 must be implemented by November 28, 2017 ... Phase 3 must be implemented by November 28, 2019 ... A detailed discussion regarding the different phases of the implementation timeline can be found in Section B. II 'Implementation Date.'"
42 C.F.R. 483.10 is updated but CMS is "retaining all existing residents’ rights and updating the language and organization of the resident rights provisions to improve logical order and readability, clarify aspects of the regulation where necessary, and updating provisions to include advances such as electronic communications."
There's a new reg, 42. C.F.R. 483.21, "Comprehensive Person-Centered Care Planning" wherein CMS, among other things, is "requiring facilities to develop and implement a baseline care plan for each resident, within 48 hours of their admission, the instructions needed to provide effective and person-centered care that meets professional standards of quality care."
One of the most watched sections involved the use of arbitration clauses. 42 C.F.R. 483.70 now includes, among other things, the following: "Binding Arbitration Agreements: We are requiring that facilities must not enter into an agreement for binding arbitration with a resident or their representative until after a dispute arises between the parties. Thus, we are prohibiting the use of pre-dispute binding arbitration agreements."
This is just a brief overview of a few provisions. We'll blog about more of them later, but for now, be sure to read the new regs. They're important!
P.S. this post has been updated to correct the publication and effective dates (I was too excited)
Tuesday, September 27, 2016
Kindred Health Care Inc. Hit With Sanctions for Failure to Comply with Federal Settlement Terms on Hospice Care
Kindred Healthcare Inc., the nation's largest post-acute care provider (after acquiring Gentiva Healthcare in 2015) recently paid more than $3 million to the federal government as sanctions for inaccurate billing practices under Medicare for hospice services. That may not sound like a lot of money in this day and age of Medicare and Medicaid fraud cases, right? After all, North American Health Care Inc. reportedly settled a false claims case with the Department of Justice earlier this month in a rehabilitation services investigation by agreeing to pay $28 million.
But, the Kindred Health Care sanction is actually a penalty for failing to comply with the terms of a previous multimillion dollar settlement by the feds with Gentiva. As part of that settlement, the company and its successors agreed to comply with a Corporate Integrity Agreement (CIA). From the Office of Inspector General, Department of Health and Human Services press release:
It is the largest penalty for violations of a CIA to date, the Office of Inspector General (OIG) said.
The record penalty resulted from Kindred's failure to correct improper billing practices in the fourth year of the five-year agreement. OIG made several unannounced site visits to Kindred facilities and found ongoing violations. "This penalty should send a signal to providers that failure to implement these requirements will have serious consequences," Mr. Levinson said. "We will continue to closely monitor Kindred's compliance with the CIA."
OIG negotiates CIAs with Medicare providers who have settled allegations of violating the False Claims Act. Providers agree to a number of corrective actions, including outside scrutiny of billing practices. In exchange, OIG agrees not to seek to exclude providers from participating in Medicare, Medicaid, or other Federal health care programs. CIAs typically last five years.
The post-acute care world -- which includes hospice, nursing homes, rehabilitation and home care -- is a tough marketplace. According to a McKnight News report, Kindred is also closing some 18 sites as "underperforming." For more on Kindred's operations, including its explanation of the penalty as tied to pre-acquisition practices of Gentiva, see this article in Modern Healthcare, "Kindred Pays Feds Largest Penalty Ever Recorded for Integrity Agreement Violations."
Wednesday, September 21, 2016
Stetson's 18th annual National Conference on Special Needs Trusts & Special Needs Planning takes place on October 19-21, 2016 at the Vinoy Hotel in St. Petersburg, Florida. Early Bird Registration rates end September 23, 2016. The national conference spans two days, with general sessions in the mornings and three tracks of breakout sessions in the afternoons (basics, advance and administration) Information about the conference, including the agenda, speakers, and links to register is available here. (Full disclosure, I'm the conference chair. Hope to see you at the conference!)
Thursday, September 8, 2016
The Commonwealth Fund released issue briefs examining "high-need" patients. High-Need, High-Cost Patients: Who Are They and How Do They Use Health Care? is a 14 page issue brief, which is available as a pdf here. Here is the abstract
Issue: Finding ways to improve outcomes and reduce spending for patients with complex and costly care needs requires an understanding of their unique needs and characteristics. Goal: Examine demographics and health care spending and use of services among adults with high needs, defined as people who have three or more chronic diseases and a functional limitation in their ability to care for themselves or perform routine daily tasks. Methods: Analysis of data from the 2009–2011 Medical Expenditure Panel Survey. Key findings: High-need adults differed notably from adults with multiple chronic diseases but no functional limitations. They had annual health care expenditures that were nearly three times higher—and which were more likely to remain high over two years of observation—and out-of-pocket expenses that were more than a third higher, despite their lower incomes. On average, rates of hospital use for high-need adults were more than twice those for adults with multiple chronic conditions only; high-need adults also visited the doctor more frequently and used more home health care. Conclusion: Wide variation in costs and use of services within the high-need group suggests that interventions should be targeted and tailored to those individuals most likely to benefit.
Looking at this from an elder law perspective, I was interested in the age data in this brief. "High-need adults are disproportionately: ... Older. More than half were age 65 and older; of these, most were 75 and older. In contrast, only about a third of adults with multiple chronic diseases, and less than a fifth of the adult population as a whole, were age 65 and older."
The companion issue brief, Health System Performance for the High-Need Patient: A Look at Access to Care and Patient Care Experiences, is available here as a pdf. The abstract for this brief explains
Issue: Achieving a high-performing health system will require improving outcomes and reducing costs for high-need, high-cost patients—those who use the most health care services and account for a disproportionately large share of health care spending. Goal: To compare the health care experiences of adults with high needs—those with three or more chronic diseases and a functional limitation in the ability to care for themselves or perform routine daily tasks—to all adults and to those with multiple chronic diseases but no functional limitations. Methods: Analysis of data from the 2009–2011 Medical Expenditure Panel Survey. Key findings: High-need adults were more likely to report having an unmet medical need and less likely to report having good patient–provider communication. High-need adults reported roughly similar ease of obtaining specialist referrals as other adults and greater likelihood of having a medical home. While adults with private health insurance reported the fewest unmet needs overall, privately insured high-need adults reported the greatest difficulties having their needs met. Conclusion: The health care system needs to work better for the highest-need, most-complex patients. This study’s findings highlight the importance of tailoring interventions to address their needs.
Tuesday, September 6, 2016
Kaiser Health News (KHN) ran the story, ‘America’s Other Drug Problem’: Copious Prescriptions For Hospitalized Elderly, focusing on the problems of polypharmacy in elders. Opening with examples of actual patients, one of whom was taking 36 prescriptions, the story focuses on the issue of elders taking multiple medications and the implications of doing so.
An increasing number of elderly patients nationwide are on multiple medications to treat chronic diseases, raising their chances of dangerous drug interactions and serious side effects. Often the drugs are prescribed by different specialists who don’t communicate with each other. If those patients are hospitalized, doctors making the rounds add to the list — and some of the drugs they prescribe may be unnecessary or unsuitable.
“This is America’s other drug problem — polypharmacy,” said Dr. Maristela Garcia, director of the inpatient geriatric unit at UCLA Medical Center in Santa Monica. “And the problem is huge.”
Among the problems with polypharmacy noted in the article is whether the patient actually needs the drug and the role of medication issues in the patient's hospitalization. The numbers are high:
Older adults account for about 35 percent of all hospital stays but more than half of the visits that are marred by drug-related complications, according to a 2014 action plan by the U.S. Department of Health and Human Services. Such complications add about three days to the average stay, the agency said.
Data on financial losses linked to medication problems among elderly hospital patients is limited. But the Institute of Medicine determined in 2006 that at least 400,000 preventable “adverse drug events” occur each year in American hospitals. Such events, which can result from the wrong prescription or the wrong dosage, push health care costs up annually by about $3.5 billion (in 2006 dollars).
The article reviews the instances where patients are prescribed additional prescriptions during hospitalization and on discharge, are confused about what medications to take. Who becomes the "traffic cop" to keep the patients from undergoing drug-related complications? The pharmacist! Focusing on the inpatient geriatric unit in one hospital, the story explores the importance of the clinical pharmacist's inclusion in a patient's medical team. The featured hospital hired their clinical pharmacist about 3 years ago, according to the story, with "[t]he idea was to bring a pharmacist into the hospital’s geriatric unit to improve care and reduce readmissions among older patients." How successful has this been?
Having a pharmacist ... on the team caring for older patients can reduce drug complications and hospitalizations, according to a 2013 analysis of several studies published in the Journal of the American Geriatrics Society.
Over a six-month stretch after [the clinical pharmacist] started working in UCLA’s Santa Monica geriatric unit, readmissions related to drug problems declined from 22 to three. At the time, patients on the unit were taking an average of about 14 different medications each.
This seems like a really great idea and hopefully one that will be picked up by other geriatric units.
Thursday, September 1, 2016
Giving more evidence of the potential impact of aging boomers in America, officials in Humboldt County, a North Coast county in California, describe potential shutdowns of three area nursing homes as potentially "catastrophic." The reason for the closures? The problem isn't lack of residents. Operators find it difficult to attract adequate personnel, especially CNAs, needed to staff the care facilities. From the North Coast Journal article describing the latest problem:
Rockport Healthcare Services, the management company for five of Humboldt County's six skilled nursing facilities, announced today that they have filed relocation notices for three sites: Pacific, Seaview, and Eureka Rehabilitation and Wellness Centers. The relocation notices, filed with the California Department of Public Health, are the first step in closing these facilities, which collectively contain 258 beds, and relocating their patients.
Stefan Friedman, spokesperson for Rockport, said in a statement that the company is continuing to work with community partners to "find a solution to [a] severe staffing crisis," but it is possible that after public health approves their relocation notice they will shut down the facilities.
That, said Area 1 Agency on Aging ombudsman Suzi Fregeau, would be "catastrophic."
Although many patients stay only briefly in skilled nursing facilities, receiving rehabilitation after leaving the hospital, the facilities are often the last stop for patients who cannot afford in-home healthcare professionals and need 24-hour care. Their vital role in the continuum of care was felt last year, when the facilities — five of which are owned by the same company, Brius Healthcare — stopped accepting patients. Hospital administrators, hospice workers and families all felt the pinch, and many North Coast residents had to go to facilities far away from Humboldt County. Fregeau said the potential closure will be even worse.
"It means that residents are going to be placed in facilities a minimum of 150 miles away," she said. "People are going to be dying in communities they’ve never lived in."
Sad to think that some of the prettiest areas of California are struggling with attracting and keeping adequate numbers of trained people.