Friday, February 7, 2014

Whistleblower Claims May Be Big Business, But Certain People Can't Be Plaintiffs

In United States ex rel. Fair Laboratory Practices Associates v. Quest Diagnostics Inc., decided by the Second Circuit on October 25 2013, we see another qui tam suit, where former employees allege the company's participation in a scheme to defraud Medicare and Medicaid, this time by allegedly underpricing certain services in order to stimulate referrals of clients who qualified for higher rates under Medicare or Medicaid coverage.  That allegation triggered the federal Anti-Kickback Statute that applies to federal health care programs. 

If anyone is interested in -- or skeptical about -- making a whistleblower claim part of a "business plan," just read this decision.  The plaintiff, Fair Laboratory Practices Associates, was formed as a partnership by three former employees, who combined their knowledge in an attempt to confront what they believed were fraudulent sales practices.  The federal False Claims Act permits successful whistleblowers to share in any financial recovery for the U.S.   

Just one little problem.  One of the members of the partnership was a former vice president and general counsel for the defendant corporation, and he was disclosing information received in his role as the only in-house lawyer for the company. Indeed, as reported in the opinion, that is exactly why the other two whistleblowers invited him to join their partnership, because his status as a lawyer "would improve our credibility with the government." 

Unfortunately for the plaintiffs' group, it also triggered Rule 1.9 of New York's ethical rules, prohibiting a lawyer from disclosing confidential information of former clients.  While the 2d Circuit credited the attorney's contention that he reasonably believed his employer intended to commit a crime, the court concluded the level of disclosure was "greater than reasonably necessary to prevent any alleged ongoing fraudulent scheme."   The Court rejected the argument that the policies underlying the False Claims Act trumped the state's ethical rules for legal counsel.

More importantly, the court concluded that although the other two non-lawyer partners could have filed the qui tam action based on the information they alone possessed as former executives for the company, once their knowledge became entwined with the attorney's unauthorized disclosures, the partnership as a group was disqualified.  Case dismissed (although the Court does leave the door open for a new relator as plaintiff, or the U.S. on its own). 

Here's more on the case by Joseph Callanan, an associate editor for the American Bar Association's Litigation News.   

Here is useful background on the federal Anti-Kickback law, courtesy of the American Health Care Association.

February 7, 2014 in Ethical Issues, Federal Cases, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 4, 2014

Indiana App. Ct. Rejects Liability for Daughter Signing NH Contract as "Responsible Party"

On January 30, 2014, the Indiana Court of Appeals reversed a ruling in favor of a nursing home, concluding that a daughter who signed the nursing home admission agreement on the line for "responsible party/agent" was not liable for breach of contract where she held no Power of Attorney or other authority to handle her mother's finances. 

In Hutchinson v. Trilogy Health Services LLC, the mother, suffering from cancer and needing constant care after a hospitalization, was admitted to the skilled care facility from November 11, 2011 until February 5, 2012.  She passed away in February 2013.  During the interim, Trilogy sued both the mother and the daughter for breach of contract.  Following a trial, the small claims court entered judgment against the daughter in favor of Trilogy for $2,610 plus court costs.  The amount of the judgment covered costs for "bed hold fees, beauty shop services and respiratory equipment."

In reversing the trial court judgment, the Indiana Court of Appeals cited the lack of any evidence the daughter held power of attorney or that daughter misused her mother's resources, as well as the son-in-law's testimony that a nursing home representative reassured his wife at the time of signing that she was not incurring personal liability for her mother's costs of care.  The Court of Appeals distinguished the facts from those in cases such as Sunrise Healthcare Corp. v. Azarigian, a Connecticut appellate case decided in 2003, where the daughter held Power of Attorney and used it to make transfers that created ineligibility for Medicaid. 

I hope readers will forgive me for a moment of immodesty for mentioning that the Indiana Court of Appeals also cited my law review article analyzing "responsible party" liability issues. When I wrote that article for the University of Michigan's Journal of Law Reform, it was exactly this set of facts I was pointing to with concern, where an "innocent" family member or other person signs a nursing home's document believing that doing so is necessary to authorize admission, with no intent (and sometimes no personal ability to afford) to pay privately, only later to be sued for "breach of contract" or on statutory theories such as "filial support."

February 4, 2014 in Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Monday, February 3, 2014

Surprisingly Unlimited Statutes of Limitation and Whistleblower Suits

As readers of this blog will recognize, whistleblower-triggered suits alleging fraud in Medicare and Medicaid are big business. 

The February 2014 issue of The Washington Lawyer, published by the D.C. Bar, has a fascinating article written by Joshua Berman, Glen Donath, and Christopher Jackson, two of whom are former federal prosecutors.  In "A Casualty of War: Reasonable Statute of Limitation Periods in Fraud Cases," they outline modern use -- perhaps misuse -- of the Wartime Suspension of Limitations Act (WSLA), originally enacted in the 1940s. 

Beginning in 2008, the statute, and a more recent tweak under the Wartime Enforcement of Fraud Act (WEFA), has become a key tool of the Department of Justice in pursuing arguably "stale" claims of fraud.  The original provision "tolls" the statute of limitation for such claims until three years after the termination of hostilities for "virtually any kind of fraud in which the United States has been the victim."  The 2008 provision, changing the three-year extension to five-years, also "simultaneously broadened the circumstances in which the WSLA's tolling provision is triggered and narrowed the circumstances in which the 'war' can be said to have ended." The result is potentially unlimited periods within which to file suit.  The authors explain:

"Now, under the post-amendment WSLA, virtually any congressional authorization for the use of military force -- such as that which was approved by Congress prior to the wars in Afghanistan and Iraq and also recently contemplated with regard to Syria -- will trigger the statute. But only a formal proclamation by the president, with notice to Congress, or a concurrent resolution of Congress will suffice to end the 'war' and resume the running of the five-year clock under the original limitations period."  

The authors point out that during World War II, it was "understandable and desirable that the government be given flexibility to bring cases that would otherwise become stale."  But the effect of the WLSA is not limited to fraud claims against war-related industries such as defense contractors.  The authors critique application beyond the original justification of wartime, to Social Security fraud or False Claims Act violations, the latter the basis for most qui tam claims in senior care and health care industries.

February 3, 2014 in Federal Cases, Federal Statutes/Regulations, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 28, 2014

"Whistleblower Laws in the 21st Century" - Penn State Dickinson Program on March 20

Senior Care -- in all of its guises -- is Big Business.  And much of that big business involves government contracts and government funding, and therefore the opportunity for whistleblower claims alleging mismanagement (or worse) of public dollars.  For example, in recent weeks, we've reported here on Elder Law Prof on the $30 million dollar settlement of a whistleblower case arising out of nursing home referrals for therapy; a $3 million dollar settlement of a whistleblower case in hospice care; and a $2.2 billion dollar settlement of a whistleblower case for off-prescription marketing of drugs, including drugs sold to patients with dementia

While the filing of charges in whistleblower cases often makes headlines, such as the recent front page coverage in the New York Times about the 8 separate whistleblower lawsuits against Health Management Associates in six states regarding treatment of patients covered by Medicare or Medicaid, the complexity of the issues can trigger investigations that last for years, impacting all parties regardless of the outcome, including the companies, their shareholders, their patients, and the whistleblowers, with the latter often cast into employment limbo.

Penn State Dickinson School of Law is hosting a program examining the impact of "Whistleblower Laws in the 21st Century: Greater Rewards, Heightened Risks, Increased Complexity" on March 20, 2014 in Carlisle, Pennsylvania. Trickett Hall, Penn State Dickinson School of Law, Carlisle

The speakers include Kathleen Clark, John S. Lehman Research Professor at Washington University Law  in St. Louis;  Claudia Williams, Associate General Counsel, The Hershey Company; Jeb White, Esq., with Nolan Auerbach & White; Scott Amey, General Counsel for the Project on Government Oversight (POGO); and Stanley Brand, Esq., Distinguished Fellow in Law and Government, Penn State Dickinson School of Law.    

Stay tuned for registration details, including availability of CLE credits.

January 28, 2014 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, January 24, 2014

Just Another Whistleblower Settlement in the Elder Care World -- for $30 Million?

The Justice Department has announced the settlement of a Whistleblower case, involving allegations that RehabCare Group Inc., RehabCare Group East Inc. and Rehab Systems of Missouri, plus a management company, Health Systems Inc., violated the False Claims Act by engaging in a kickback scheme related to the referral of clients between nursing homes and therapy services. 

Ho-hum.  Just another settlement.  No admissions of wrongdoing.  Promises that they won't do in the future what they say they didn't do in the past.  No reason to put another Whistleblower settlement affecting elder care services on the front page of any newspapers, or make it the lead story on the nightly news, right?

But hey, the settlement figure was $30 million dollars.  Thirty ... Million ... Dollars.  Are we so innured to Whistleblower cases in this country that an agreement to pay $30 million dollars is viewed merely as a cost of doing business?  Do we simply accept it as an extra "tax" on the price of nursing home care -- or  pharmaceutical drug sales --  or hospice care -- just to name three industries that have agreed to pay multi-millions in settlement of False Claim Act suits during the last year? 

I suppose the Treasury is modestly pleased to be recovering payments to offset Medicare or Medicaid costs that are constantly under assault by legislators professing concern about the size of the budget devoted to elder care. The Justice Department says that in the last five years, it "has recovered more than $17.1 billion through False Claims Act cases, with more than $12.2 billion of that amount recovered in cases involving fraud against federal health care programs." 

But what about the persons receiving the care?   How do these these non-admissions of fault, combined with additional costs that surely must reappear in future billings to the public, affect the elders and disabled persons depending on these companies for care? 

January 24, 2014 in Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 21, 2014

Geriatric Care Management and Boomers

Recently, a Pennsylvania friend was describing her aging father's situation in one of the sunshine states.  When her father, a widower, began to show signs of diminishing capacity, the adult children discussed options, including moving Dad closer to one of them. But, he liked his retirement spot in the sunshine, had friends, and, in fact, there were more care options where he was living.

Eventually, my friend hired a local geriatric care manager in the sunshine state, with the cost shared by her and two siblings.  In our most recent conversation, my friend described that decision as perhaps the best move the family made.  She said that at first she had a hard time getting her father's facility to accept the fact that they should call the care manager first.  But having an informed person -- an experienced advocate for her father -- in the community has often been essential, as questions arose over insurance, level of care, medications, transfers between facilities, nutrition and whether to hospitalize. My friend still makes regular trips to visit her father, but the local manager meant there were fewer emergency trips.

Geriatric care managers, sometimes called care coordinators, elder care coordinators, or professional care managers, could -- and perhaps should -- be an increasingly important part of planning.  One of the questions about this emerging profession is credentials.  At least two national trade groups exist, including the National Association for Professional Geriatric Care Managers (NAPGCM) and the National Academy of Certified Care Managers (NACCM).

In addition, law firms specializing in elder law frequently offer care management services, often employing non-lawyer professionals as part of the team.

Geriatric care management may be very important to "elder boomers," both as they become seniors caring for their even-more-senior-aged parents, and as future care-needing individuals themselves.  Unfortunately, a big question may be cost.  Medicare and Medicaid -- and most insurance -- does not cover the cost of care management.  As reported by the New York Times a few years ago in "Care Coordination: Too Expensive for Medicare?," attempts to secure public funding for care managers has been stymied by studies that show care management does not necessarily reduce the costs of care. 

Nonetheless, such coordination may be particularly important in a nation where family members often live far apart.  In my friend's situation, she expected the need to last for a couple of years, but in fact, her father is approaching age 98, and the "healthy" relationship between the children, their father and his care coordinator has lasted for more than 10 years. 

January 21, 2014 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Medicare | Permalink | Comments (0) | TrackBack (0)

Friday, January 17, 2014

Center for Medicare Advocacy calls for ending therapy caps in Medicare

Medicare-covered outpatient physical, speech and occupational therapy services are subject to an annual dollar-amount payment cap.  As a result, many Medicare beneficiaries have their therapy terminate prematurely when they reach the cap.  While there is an Exceptions process in place that allows beneficiaries to receive therapy in excess of the caps, it is set to expire on March 31, 2014.  Moreover, the existing process is burdensome and many providers of services are slow to assist beneficiaries in obtaining therapy cap...
It's time to reduce barriers to care, not exacerbate them.  We urge Congress to repeal the Medicare outpatient therapy caps.  As recently highlighted by former Congresswoman Gabrielle Giffords, longer-term, ongoing therapy can be the key to functionality and life-changing improvements.
Read more about this important topic here.

January 17, 2014 in Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | TrackBack (0)

Monday, January 6, 2014

AALS Program Report: The Financial Challenges of Aging

Skating in NYC Photo (c) 2014 Katherine C. PearsonCatching up after a busy weekend at the Association of American Law Schools (AALS) Annual Meeting 2014 in New York City, I'm happy to report the presentations at the Section on Aging and the Law seemed to go smoothly and were well received, with a very engaged audience.  While the weather made travel to and from NYC a bit tricky, it also seemed to "encourage" strong attendance at sessions.  (I found myself skating even when not visiting the rink at Rockefeller Plaza!)

Section Chair Susan Cancelosi (Wayne State) was snowed out -- but I suspect Susan would be pleased by the reaction to the program she planned.  Thank you, Susan, for putting together the theme, securing speakers, making sure we were all on track, and creating a back-up weather plan.  We've decided you should be the moderator next year, if you don't mind!

Dick Kaplan (Illinois) led off the panelists, using his best "Dr. Phil" style to walk us through (both literally and metaphorically) the latest changes to Medicare triggered by the Affordable Care Act and other recent legislation.  Recognizing that many in our audience do not teach elder law or health care law, Dick offered information useful to all academics who "expect" to retire.  For example, recent information from the Employee Benefit Research Institute supported his forecast that a 65-year old person retiring in 2012 would need substantial saving just to cover out-of-pocket medical expenses, in the range of  $122,000 -$172,000 for men and between $139,000 - $195,000 for women (with projections also affected by prescription drug usage).  Dick reminded us that this figure does NOT include any costs for long-term care.  

Next on the panel was Laura Hermer (Hamline), who is new to our Section -- and a very welcome addition.  Using her health law background, Laura outlined the maze of programs, including state plan innovations and waiver programs under Medicaid, that may provide "long-term services and supports" (or LTSS -- the latest acronym that seems to be an intentional step away from a "care" model) for older persons.  Her presentation emphasized the shift to home or community based care, but Laura made clear that this shift depends heavily on unpaid care by family members. 

Incoming Section Chair Mark Bauer (Stetson) made effective use of visual images of 55+ communities in Florida to demonstrate his concern that exemptions from civil rights protections that permit age-restricted communities may not be matched by actual benefits for the older adults targeted as residents.  Mark stressed the percentage of housing that is not designed to match predictable needs for an aging population.  Examples included multi-story designs without elevators, steps into even ground-level units, and bathrooms without wheel-chair accessibility.  Mark's presentation expanded on his recent article in the University of Illinois' Elder Law Journal.

Speaking last, my topic was the latest state law developments tied to federal laws that authorize nursing homes to compel a "responsible party" to sign a prospective resident's nursing home contract.  States are creating potential personal liability for costs of care for family members, agents or guardians, or transferors or transferees of resources, if the resident is deemed ineligible for Medicaid.  Here are links to a copy of the slides I used for my  presentation on "Revisiting Nursing Home Contracts," as well as to a related short article I was invited to write for the Illinois State Bar Association's Trusts & Estates Section in December 2013.

The panel presentations were followed by great questions and observations from the audience, further highlighting the financial challenges of aging.  Plus, it was wonderful to see several new members volunteering to join the planning committee for future programs for the Aging and Law Section of AALS.  And welcome back to the board to Alison Barnes (Marquette Law).

January 6, 2014 in Consumer Information, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Programs/CLEs, Retirement, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 1, 2014

What Retiring Academics Need to Know About Health Care: Richard Kaplan's Presentation at AALS

Professor Richard KaplanUniversity of Illinois' Richard Kaplan will lead off the presentations at AALS's Aging and Law section meeting later this week.  The theme of the program is "From the Affordable Care Act to Aging in Place:  What You Need to Know as You Grow Older." 

Professor Kaplan's presentation will focus on Medicare, and he has a practical focus, relevant to all AALS attendees (either sooner or later!). He observes, "Paying for health care costs in retirement is very different from what most academics have experienced during their working lives. This session will explain the four distinct Parts of Medicare and the various decisions that retirees must make regarding the coverages they want and the costs those decisions entail."

Dick is well-known to elder law faculty and to the broader world of health-care and retirement income scholars, both nationally and internationally.  His article "Top Ten Myths of Medicare," published in 2012, is one of the leading downloads on SSRN.

The Aging and the Law Section panel program runs from 3:30 to 5:15 on Friday, January 3, with a short Section Business meeting after the program. 

January 1, 2014 in Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (1) | TrackBack (0)

Monday, December 30, 2013

AALS Aging & Law: Laura Hermer to Address ACA Impact on Seniors

Hermer_Laura_webMuch of the national media attention on the Affordable Care Act has focused on those who were previously uninsured or those who must change policies and coverage.  But there are also important studies emerging on how the ACA will affect seniors. 

At the AALS annual meeting in New York City, Hamline University School of Law's Laura Hermer will address changes to Medicaid in the Affordable Care Act that impact elders, most notably concerning long term care and care coordination for "dual eligibles." Professor Hermer will also discuss some of the many problems for beneficiaries that remain or, in some cases, may be created following ACA-related changes.

Professor Hermer has two new articles scheduled for publication in 2014, including "Enterprise Liability: Medical Malpractice Reform in the Service of Improved Health Care Quality and Outcomes," to be published in the Journal of Health Care Law and Policy, and "The Future of Medicaid Supplemental Payments: Can They Promote Patient-Centered Care?," co-authored with Dr. Merle Lenihan of University of Tennesseee, to be published in the Kentucky Law Journal.

Laura's ACA forecast presentation will be part of the panel assembled by Wayne State Law Professor Susan Cancelosi for the Aging and Law Section at the AALS meeting on Friday, January 3, scheduled to begin at 3:30 p.m. 

December 30, 2013 in Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Sunday, December 29, 2013

Hospice Care Manipulated by Providers: Washington Post Report

Washington Post reporters Peter Whoriskey and Dan Keating use more than ten years of data from California to provide a detailed portrait of hospice, with national implications, concluding that providers are pursuing "healthier" patients to increase their margin.  While acknowledging the importance of Medicare-supported hospice for individuals legitimately diagnosed with less than six months to live, the Washington Post article uses survival rates to suggest manipulation of the diagnosis for financial gain:

"[T]he survival rates at AseraCare are emblematic of a problem facing Medicare, which has created a financial incentive for hospice companies to find patients well before death. Medicare pays a hospice about $150 a day per patient for routine care, regardless of whether the company sends a nurse or any other worker out on that day. That means healthier patients, who generally need less help and live longer, yield more profits.


The trend toward longer stays on hospice care may be costing Medicare billions of dollars a year. In 2011, nearly 60 percent of Medicare’s hospice expenditure of $13.8 billion went toward patients who stay on hospice care longer than six months, MedPAC, the Medicare watchdog group created by Congress, has reported."

For the full Washington Post story, itemizing factors contributing to misuse of hospice, see "Hospice Firms Drain Millions from Medicare."

December 29, 2013 in Current Affairs, Health Care/Long Term Care, Medicare, Statistics | Permalink | Comments (0) | TrackBack (0)

Thursday, December 26, 2013

See You in NYC: AALS Aging & Law Section Program on January 3, 2014

Hard to believe, but AALS Annual Meeting 2014 is just around the corner.  Aging & Law Section Chair Susan Cancelosi (Wayne State Law) has planned a great program, and we look forward to the interaction between panel members and the audience.

The theme is "From the Affordable Care Act to Aging in Place: What You Need to Know as You Grow Older."

Speakers include:

Mark Bauer (Stetson Law) on "Aging and 55+ Age-Restricted Housing."

Laura Hermer (Hamline Law) on "changes to Medicaid under the Affordable Care Act that impact the elderly, with particular attention to several state implementations of relevant state plan options and demonstration projects involving dual eligibles and others."

Richard Kaplan (Illinois Law) on “the very different world of financing health care that awaits retirees, including how to  navigate the various Parts of Medicare and their attendant problems.”

Katherine Pearson (Penn State Law) will discuss "the emerging trend of states adopting laws authorizing nursing homes to collect unpaid debts from family members or fiduciaries."

I'll provide more details about the individual speakers' programs, both before and after the event.  But remember to mark your calendar for New York City, on Friday,  January 3, at 3:30-5:15.  As always, there will be a short business meeting following the presentations and discussion.  

December 26, 2013 in Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 24, 2013

Son's Challenge to Nursing Home Claim as "Prohibited Guarantee" Fails

I've been reading discussions lately on elder law listservs, debating whether nursing homes'  attempts to hold family members  contractually liable to pay bills violate the Nursing Home Reform Act's bar on mandatory third-party guarantees of payment. 

This issue was addressed recently by the United States District Court for the Western District of Pennsylvania in White v. Jewish Association on Aging, where a pro-se plaintiff alleged a violation of NHRA at 42 U.S.C. §§ 1395i-3(c)(5)(A)(ii) and 1396r(c)(5)(A)(ii), tied to allegations that his mother's nursing home required him to sign the admission agreement for his mother. 

The U.S. District Court dismissed the suit, rejecting  NHRA as permitting a private right of action, but then also addressing the specific "guarantee" issue urged by the son:  

"In signing the Admissions Agreement and agreeing to become the Responsible Party... Plaintiff consented to apply Ms. White's financial resources to cover her care.... The Agreement also explicitly states that the Responsible Party's failure to apply a Resident's income and assets to pay for the care would result in the Responsible Party becoming personally liable—not for the bill itself— but 'for any misappropriation or misapplication of Resident's funds or assets.' Plaintiff makes no allegation that Defendant is doing anything other than what is expressly permitted—requiring him to apply Ms. White's finances to cover her costs. Thus, Plaintiff is not being treated as a guarantor, and his claim should be dismissed." (citations ommited)

Hat tip to Rob Clofine, Esq. of York, Pennsylvania for the White case link.

December 24, 2013 in Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 17, 2013

Family Caregiver Assessments: New Frontier Indicated by AARP Policy Report

One of the most important changes in U.S. funding for long-term care is the move to providing financial support for care in the home or less institutional settings, through Medicaid's HCBS waiver programs.

This month the AARP Public Policy Institute, with support from The Hartford Foundation and the (new) U.S. Administration on Community Living and the (older) Administration on Aging, issued an important report on the corresponding need for assessment not just of the recipient, but of the family members who will serve as caregivers: 

"Family support is often essential for helping older people and adults with disabilities continue to live at home and in the community.  Yet the work of family caregivers can be demanding—physically, emotionally, and financially.  If family caregiver needs are not assessed and addressed, their own health and well-being may be at risk, which may lead to burnout—jeopardizing their ability to continue providing care in the community."

Further, the study, titled "Listening to Family Caregivers: The Need to Include Family Caregiver Assessment in Medicaid Home- and Community-Based Service Waiver Programs," reviews current practices among the states, concluding that "the concept of assessing a family caregiver's own needs is not well understood in many Medicaid HCBS program."

The report makes eight specific policy recommendations, including:

 "When a family caregiver assessment is conducted, family caregivers must be directly asked about their (a) own health and well-being, (b) levels of stress and feelings of being overwhelmed, (c) needs for training in knowledge and skills in assisting the care recipients, and (d) any additional service and support needs."

The report also recommends that assessment of caregivers be recorded and made a part of the HCBS client's record, including electronic records.  The report compares practices among the fifty states and D.C., identifies potential best practices, and concludes that many states' current assessment tools are inadequate. 

Hat tip to ElderLawGuy Jeff Marshall for "tweeting" on this important new study.

December 17, 2013 in Consumer Information, Federal Statutes/Regulations, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Monday, December 9, 2013

National Council on Aging Urges Public Support for This Week's Vote on "Qualified Individual" Medicare Funding

From the National Council of Aging (NCOA) a call for action, urging people to write their federal legislators:

This week, House and Senate Committees are scheduled to vote on a bill to permanently fix the longstanding problems with Medicare physician payments. The bad news is that the Medicare Qualified Individual (QI) Program may not get the fix it needs—leaving nearly half a million low-income people with Medicare facing new, unaffordable costs or reduced access to their doctors.


The QI program pays Medicare Part B premiums for beneficiaries with incomes of about $14,000-$15,500, most of whom already must spend over a quarter of their meager income on health care. 


If the bills fail to make the QI program permanent, low-income seniors could be forced to drop the Part B benefit and lose access to their doctors, or pay over $1,200 in new, additional premiums.


This means that a senior with just a $14,000 income would only have $9,000 left for all their other living expenses.

The NCOA offers an easy form to use in emailing your Congressional representatives to urge them to vote to make the QI program permanent to protect seniors' economic security and access to physicians.

December 9, 2013 in Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0) | TrackBack (0)

Interstate Challenge to Pennsylvania Filial Support Claim

As readers of this blog will be aware from previous posts, Pennsylvania courts are willing to enforce the Commonwealth's filial support law.  The law, at 23 Pa. C.S.A. Section 4603, makes spouses, parents or adult children potentially liable to "care for and maintain or financially assist" each other where the care-needing family member is "indigent."  Pennsylvania's law has been interpreted as giving nursing homes or other third-party caregivers standing to sue. 

The suits can cross state lines, usually because the target defendant is an out-of-state son or daughter of a nursing home resident in Pennsylvania, thus creating potentially interesting questions of personal jurisdiction.  But the latest suit I've seen is an interesting twist on that fact pattern.

In Eades v. Kennedy, P.C. Law Offices, filed in United States District Court for the Western District of New York, a New York husband and daughter are the plaintiffs, suing a Pennsylvania law firm that attempted to collect  a nursing home debt "by means of at least one item of correspondence and at least one telephone call."  The plaintiffs in the New York suit are also apparently defendants in a Pennsylvania lawsuit filed by the nursing home.  At issue is a bill for $8,000.  The nursing home in question, located in Corry, Pennsylvania, is just a few miles south of the New York state line. 

In the New York suit, Eades asserts that the collection attempts violated the Fair Debt Collection Practices Act (FDCPA) and further that the law firm's allegations of their liability under Pennsylvania's filial support law is "preempted" by federal Medicare/Medicaid law, under a provision of the Nursing Home Reform Act (NHRA) that bars a nursing home from requiring "a third party guarantee of payment to the facility as a condition of admission."

The New York federal district court dismisses the suit, concluding that there is no "jurisdiction," apparently both on subject matter jurisdiction and personal jurisdiction grounds.  But then the ruling gets more interesting.  The court proceeds to address the substantive claims by the family members, and seems to conclude that a cause of action under the FDCPA is not triggered by a "support" claim, including a filial support claim.  Further, the court suggests there is no preemption under federal law for the following reasons:   

"The NHRA holds that nursing homes may not require an individual's relatives to assume personal liability for the individual's care as a condition of admission or continued residence in the facility.  The Pennsylvania indigent statute cannot be said to cover the same territory: it merely holds that where a resident is or becomes indigent, a nursing home may seek payment or reimbursement for the resident's care from their spouse, children or parents.  It does not bypass the NHRA by permitting or excusing the assumption of personal liability by a relative for a nursing home resident's care as a consideration of admission or continued residence -- the sole evil that the NHRA ... appears to have been intended to prevent." 

On December 3, 2013, the New York court dismissed the father/daughter's amended complaint for failure to "state a claim." The case is Eades v. Kennedy, P.C. Law Offices, No. 12-CV-66801,  2013 WL 6241272 (W.D. N.Y. 2013).   

December 9, 2013 in Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 20, 2013

When is a Hospital Stay Not a Hospital Admission?

Question: When is a hospital "stay" not a hospital "admission?"  Answer: When someone has a financial incentive to treat it that way. 

My colleague Becky Morgan has blogged several times on the serious problem with seemingly fictional "observation status" labels attached to hospital stays, as well as the so-called "3 Midnight" requirement. See Sept. 20 Post and Sept. 5 Post.   For patients, the observation status fiction impacts on whether Medicare Part A will cover the care in the hospital.  Further, without three nights of covered care in the hospital, Medicare may not cover subsequent care at a skilled care facility for rehabilitation. 

Why do hospitals use "observation status" labels? Well, at last one reason is because the label may reduce the potential for regulation-based penalties to attach to later readmissions to the hospital. Why do regulatory authorities indulge in the fiction?  Probably because -- on some level -- the consequences are seen as reducing Medicare costs.

Several bills are pending in Congress that would impact affected parties if enacted.  Here's an inventory, complete with clever names.  Let's hope the clever names are not more important than actually finding a solution:

  • CARES Act: The "Creating Access to Rehabilitation for Every Senior" Act, H.R. 3531, introduced by Rep. Jim Renacci (R-OH), would eliminate the 3-midnight rule for transfers to certain "qualified" centers.  This bill was introduced on November 19, 2013.
  • Fairness for the Beneficiaries Act:  Under H.R. 3144, a physician could certify that a resident requires skilled care for rehabilitation as a prequisite to Medicare Part A coverage. This bill was introduced by Rep. Jim McDermot (D-WA) on September 19, 2013
  • Improving Access to Medicare Coverage Act: Rep. Joe Courtney (D-CT), introduced H.R. 1179 on March 14, 2013, would treat outpatient observation status services in a hospital as inpatient services for purposes of satisfying the 3-day requirement for extended care services in a skilled nursing facility. Senator Sherrod Brown (D-OH), sponsored parallel legislation, S. 569, in the Senate on the same day.

Any other pending legislation on this topic?  Of course, some of the bills were also introduced in 2011, but generated no significant action. 

Some interim administrative changes through CMS have generated opposition, as insufficient or unworkable. as reported in McKnights

November 20, 2013 in Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0) | TrackBack (0)

Thursday, November 7, 2013

New Hampshire Law Establishes Liability for Agents Who Fail to File Timely Medicaid Applications

Effective this year, a new law enacted in New Hampshire declares that under certain circumstances a "fiduciary who possesses or controls the income or assets of a resident and has the authority and duty to file an application for Medicaid. . . shall be liable . . . to the long-term care facility for all costs of care which are not covered by Medicaid due to the fiduciary's negligence in failing to promptly and fully complete and pursue an application for Medicaid benefits for the resident." 

A bit of practical background is appropriate to appreciate the significance of this new law. 

Older individuals entering a nursing home have essentially three options for how to pay the bills at a facility: Medicare, Medicaid or Private Pay (and by private pay, I'm including the possibility of making a claim under long-term care insurance, family contributions or the resident or couple's  income and savings). 

For older individuals going directly from a hospital into skilled care or rehabilitative care, Medicare is often the first payment source, for up to 100 days per spell of illness.  On a comparative basis, Medicare is relatively easy to negotiate, as the facility usually handles the initial paperwork. 

It gets trickier, however, if long-term care is contemplated and Medicaid could be a possibility.  Medicaid-eligible facilities prefer the higher pay rates associated with private pay, and therefore may not be highly motivated to talk with residents or families about Medicaid, unless it is the only option.  But they often ask family members to pay and thus the burden of figuring out how to pay is on the family.  Sometimes that family member is the out-of-town son or daughter.  Sometimes that family member is a frail spouse.

As I have discussed in prior scholarship, gaps in payment sources can occur for a variety of reasons.  The resident is rarely the cause of the gap as usually the frailty or illness of residents is the reason they are in a care facility to begin with.  Rather, some third-party -- or the facility itself --will usually have to handle the paperwork  associated with Medicaid applications. And Medicaid applications, typically requiring collection and analysis of the previous five years of the applicant's financial records, can be challenging.

So, who are these fiduciaries facing potential liability?  The New Hampshire law says a "fiduciary" is a "person to whom power or property has been formally entrusted for the benefit of another such as an attorney-in-fact, legal guardian, trustee, or representative payee." 

There are additional conditions and qualifications in the statute affecting the potential liability of the agent or other fiduciary.  ElderLawGuy Jeff Marshall on his Blog has a thoughtful analysis of implications of the new law.

My starting question:  So, what about the family member who is named as an agent under a power of attorney, has never taken action under the POA, and for whatever reason (tiredness, lack of understanding, perhaps being overwhelmed by work or other family responsibilities) does not step forward to handle the Medicaid application process.  Is having the "authority" to serve as an agent enough  -- under this statute -- to trigger a corresponding duty?  

By the way, as I discussed in an August post, New Hampshire recently repealled its filial support laws.  I am now wondering if there was some horse-trading in the halls of the N.H. legislature whereby nursing home lobbyists agreed to the repeal of filial support laws in exchange for what I might call "fiduciary support" liability?  Anyone with insights into the history of this new law?

Feel free to "comment" below.

November 7, 2013 in Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Florida Company to Pay $3M in Latest False Claims Settlement for Hospice Providers

According to a November 4th Justice Department release, Hospice of the Comforter, Inc. (HOTCI), a company based in Florida, has agreed to pay $3 million to resolve claims it submitted false claims for services covered by Medicare for hospice patients.  The company also has issued a statement regarding the settlement, linked on its home webpage.

The report on HOTCI is the latest in a series of settlements or agreements related to whistleblower allegations of Medicare fraud in the hospice industry.  In addition to payments to be made over a period of years, the Justice Department reports that HOTCI has entered into to a "corporate integrity agreement" with the Inspector General for Health and Human Services.  Further, "HOTCI’s former Chief Executive Officer Robert Wilson has agreed to a three-year, voluntary exclusion from Medicare, Medicaid and other federal health care programs," according to the Justice Department release. 

The original whistleblower in the HOTCI case, a former executive, reportedly objected to the $3 million settlement, calling it unreasonably low. 

On the one hand, settlements are sometimes criticized as sending the wrong message, arguing agreements to pay comparatively low figues act as a cost of doing business in otherwise still profitable industries, such as the hospice industry. On the other hand, whistleblowers under the False Claims Act stand to recover a percentage of the amounts recovered in the cases. 

Other recently reported settlements with hospice providers:

November 7, 2013 in Federal Cases, Health Care/Long Term Care, Medicare | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 5, 2013

Johnson & Johnson to Pay $2.2 Billion in Plea Deal on Drug Marketing

Pharmaceutical giant Johnson & Johnson will plead guilty to a criminal misdemeanor and pay $2.2 billion, thus concluding a long federal criminal investigation into the company's alleged marketing of certain antipsychotic drugs for off-label, unapproved uses, including allegations the drugs were promoted for use by the elderly with dementia. 

The original charges flow from whistleblower reports under the False Claims Act, involving Risperdal and other drugs.  Details of the deal are widely reported in the New York Times, Bloomberg and the Justice Department has issued a press release.   

November 5, 2013 in Crimes, Health Care/Long Term Care, Medicare | Permalink | Comments (0) | TrackBack (0)